Indian country has welcomed a set of proposed regulations to reform the federal recognition process, but a provision that would hand third parties veto power to quash a tribe’s request for reconsideration of its petition is raising an outcry that political influence from Connecticut politicians is once again tainting the process.
Interior’s Assistant Secretary – Indian Affairs (ASIA) Kevin Washburn announced the publication of the proposed regulations Thursday (April 22). The proposal follows up on draft regulations issued last June that were widely applauded in Indian country as the best thing to happen in decades to a system that’s been described as “broken, long, expensive, burdensome, intrusive, unfair, arbitrary and capricious, less than transparent, unpredictable, and subject to undue political influence and manipulation.”
“We’re real happy about [the proposed regulations]. It’s taken us longer than we thought, but these things are always difficult and we’re using a lot of process and that always takes a lot of time,” Washburn told ICTMN in an exclusive interview.
The proposed regulations maintain the most significant changes in the draft concerning the toughest two of the seven mandatory criteria a tribe must meet to be acknowledged – proof that it has had maintained continuous political authority over a distinct community of members from historical times to the present. The proposed new rule would require tribes to prove continuous political authority and community since 1934 instead of 1789, aligning the review with the federal government’s repudiation of the allotment and assimilation policies of the late 1800s and early 1900s. Another important change would give weight to tribes that have maintained state-recognized reservations since 1934 or for whom the federal government has held land in trust since that year. The proposed rules also eliminate the requirement that an external entity identify the group as Indian since 1900. The full proposal, other documents and a schedule of consultations are available on the Bureau of Indian Affairs (BIA) website.
The proposed new rules are intended to maintain the rigorous integrity needed to establish a nation-to-nation relationship between an Indian tribe and the federal government in a process that is timely, efficient and transparent.
National Congress of American Indians (NCAI) President Brian Cladoosby praised the proposal as “an important step in bringing our government to government relationship into the 21stcentury. For too long, tribes have been forced to seek recognition through a process developed during a time when every effort was made to make life for Native peoples more difficult. I look forward a nation-to-nation engagement to review these proposed changes with tribal leaders and the federal government.”
But the provision giving third parties veto power over tribes seeking reconsideration of their petitions would make it virtually impossible for Connecticut’s Eastern Pequot Tribal Nation (EPTN), Schaghticoke Tribal Nation (STN) and Golden Hill Paugussett Tribe to get reviews under the new rules in the state whose Indian-fighting tradition goes back to the very first attempted genocide of Turtle Island’s indigenous people -- the massacre of more than 400 Pequots at Mystic on June 5, 1637, during what is known as the Pequot War.
STN and EPTN leaders quickly condemned the third party veto.
“By allowing the third party consent to decide the fate of the tribes, the third parties are no longer participants, but they’ve now become the judge,” STN Chief Richard Velky said. “I know ASIA Kevin Washburn is trying to do good for Indian country. I believe the BIA needs to make some changes, but this isn’t change we can believe in. This is political influence – corruption – by the state of Connecticut that went into the White House and got third party veto power over a tribe’s right to ask for reconsideration based on the merits of its petition under the revised regulations.”
Velky’s White House reference was to a Feb, 24, 2014, letter Connecticut Gov. Dannel Malloy hand delivered to President Obama in which the governor claims federal recognition of the three state recognized tribes would be “devastating” because they have filed land claims and expressed an interest in opening casinos.
EPTN Chairman Dennis Jenkins could not be reached for comment, but James Benny Jones Jr., an Eastern Pequot tribal elder and the tribe’s lawyer, told the Connecticut Mirror that his tribe plans to move forward with its attempt to win federal recognition, despite the proposed third party veto. The third party veto provision “was clearly a slap at the Connecticut tribes,” Jones Jr. said. “It’s clearly an indication of influence peddling.”
Golden Hill Paugussett Chief Quiet Hawk could not be reached for comment.
Sen. Richard Blumenthal (D-CT) 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," Blumenthal told the Connecticut Mirror.
But he also told the Hartford Courant that he questioned Washburn on the need for reforming the rules in a conversation last Thursday.
"I said to him: Why is this fight necessary?'' Blumenthal said. "Why are you revising these regulations? He said that you and others have said that the process is broken. But I have said that the criteria should be preserved. I'm mystified why they have engaged in this massive rewriting of rules and criteria which may give some of the tribal groups a second chance to seek formal federal recognition – a second bite at the apple. If any of these groups receives federal recognition, there would undoubtedly be another casino in Connecticut. Frankly, I am determined to continue to fight against any provisions” to change the rules, he told the Courant.
Blumenthal did not respond to a request for comment from ICTMN.
Blumenthal began to stir up opposition to the proposed changes among local and state officials and the congressional delegation two weeks after the draft proposal was released last year.
Blumenthal is best known in Indian country for his successful effort in 2005 to reverse the federal acknowledgment of the Eastern Pequot and Schaghticoke nations, which were recognized in 2002 and 2004, respectively. After Blumenthal led a relentless and orchestrated campaign of opposition against the STN by local, state and federal elected officials and an anti-Indian sovereignty group and its powerful White house-connected lobbyist, Barbour Griffith & Rogers, the BIA in an unprecedented move reversed both tribes’ federal acknowledgment.
But Blumenthal is also known for advocating aggressively against tribal sovereignty, federal recognition, tribal governments’ jurisdiction on tribal land, and for leading other state attorneys general to join him in court cases that aim to diminish tribal self-determination. He intervened in San Manuel v. the National Labor Relations Board, in which the U.S. Court of Appeals for the District of Columbia Circuit Court disregarded 75 years of tribal exemption and ruled that federal labor laws apply on sovereign Indian land. 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 notorious 2009 ruling in Carcieri v. Salazar that the Interior secretary does not have the authority to take land into trust for tribes recognized after the 1934 Indian Reorganization Act. Blumenthal testified in front of the House Resources Committee against legislation to fix that ruling, recommending, among other things, that “Congress should have sole authority to approve post-1934 tribal trust land requests.”
Blumenthal, Malloy, Connecticut Attorney General George Jepsen, U.S. Sen. Chris Murphy, and U.S. Representatives Rosa DeLauro, John Larson, Joe Courtney, Jim Himes and Elizabeth Esty released a joint statement in response to the proposed reforms to the federal recognition rule. “We appreciate the Obama Administration’s willingness to engage in a discussion of the concerns we have raised over the past nine months, and its latest revisions are a step in the right direction,” they said. “However, we believe additional changes and clarifications are necessary to ensure that Connecticut’s interests are protected, and we will continue to work for their inclusion.”
Among the additional changes the politicians will seek is the elimination of the use of state reservations as supporting evidence of a tribe’s existence, Malloy said in his February letter to Obama. The State of Connecticut under the “leadership” of then Attorney General Richard Blumenthal was able to overturn the federal recognition of the Eastern Pequot and Schaghticoke nations 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.
“Connecticut maintains reservations simply because there are living descendants of the groups for which the reservations were first established,” Malloy wrote with unintentional irony: In both the Schaghticoke and Eastern Pequot cases, the BIA affirmed that “the living descendants” continue to exist as tribes that meet virtually all of the BIA’s mandatory criteria for ancestry and “substantially continuous” political authority and community. “Other than the Connecticut petitioners, there are few if any groups in the United States that could meet the requirements proposed for an expedited favorable finding,” Malloy wrote, tacitly confirming that the third party veto was made in response to pressure from the Connecticut politicians.
Indian country won’t be idle in resisting Connecticut’s efforts to diminish tribal sovereignty, according to Rev. John Norwood (Nanticoke-Lenni Lenape) and co-chair of the National Congress of American Indians’ Federal Recognition Task Force. The proposed regulations will be the main topic of discussion and strategy at NCAI’s mid-year conference June 8-11 in Anchorage, Alaska, Norwood said.
“I disagree that any worthy tribe, that any historically continuing tribal community should ever have its ability to be recognized by the federal government hindered in any way by a third party. I think that is a travesty of justice,” Norwood said. “If a tribe has met the requirements, no political intrigue by a third party should derail its acknowledgement. There are tribes that have suffered such derailment in the past and for such tribes to have to get the support of third parties that have historically opposed them – not because of their worthiest but because of stereotypes or political propaganda – is unworthy of the justice that is supposed to be a hallmark of the United States.”
Norwood said it’s “obvious” that the third party veto is a concession aimed at Connecticut. “Those who’ve been involved in the federal acknowledgement process for years are keenly aware of what happened to Schaghticoke and Eastern Pequot,” he said.
But he praised proposal overall, saying ‘I’m absolutely thrilled that proposal reflects the testimonies and comments that have been submitted by both BIA-listed tribes and non-federal tribes which have a clear understanding of the injustices that have taken place with regard to federal acknowledgement. The proposed regulations reflect the spirit of the federal recognition process as it was initiated back in the late 70’s-early 80’s and sadly wound up losing its way over time. I think it assures the transparency that Secretary Washburn is trying to get to and it will also aid in consistency among decisions, but it’s still a rigorous process.”
Attorney Judy Shapiro, who has worked on federal recognition petitions for the STN and other tribes in the northeast and around the country for more than 20 years also congratulated the BIA on its efforts “to do the right thing” in revising the regulations.
“But this [third party] element of it is not okay,” Shapiro said. The federal acknowledgement process itself is based the premise that the government is correcting mistakes it has made since the beginning of the republic and the proposed revisions are to make the process fairer and better, she said. “Then to say that a specific class of tribes who have outside third party opponents and who lost in the past to rules that are now being amended to correct mistakes in the application of those prior rules or to make them fairer – it is an outrage to now allow essentially a state veto of the correction of those mistakes. There’s no question that it essentially gives a third party property rights in the outcome of the tribal-federal relationship.”
If the third party veto is just a concession to Connecticut “then it opens the door to the political influence issues that tainted the Schaghticoke petition,” Shapiro said. “I mean, really? Do these guys want to do the same thing that the Bushies did?” she added, referring obliquely to the Bush administration’s adversity to federal acknowledgement of Indian tribes.
Washburn explained the rationale behind the third party veto in an interview with ICTMN. “We do recognize . . . that outside parties who’ve been involved in litigation against these petitioning groups have developed some equities because they’ve spent tens of thousands or hundreds of thousands of dollars and numerous man-hours analyzing the petitions and challenging them and that sort of thing and where we have that situation we have to recognize that third party interest.”
“No, they don’t!” said a Washington source who deals with the Interior Department and asked to be unnamed. “Who do they have a fiduciary relationship with?” the source said, citing a court ruling that affirmed the federal government’s “inchoate fiduciary relationship” with tribes pending their recognition.
“If it becomes so that any third party entities that oppose a tribal proposal who spend enough money on it – and this applies to recognized tribes as well – can get this decision making power, this is the buying of the Interior Department, the buying of the trust relationship,” the source. “It’s saying, ‘We can spend more money and we can buy the trust relationship out from under you.”