How the Eastern Pequots overcame the big lie

Indian country should be pleased with Neal McCaleb's decision to grant federal acknowledgement to the Eastern Pequot Tribe of Connecticut, because he stood up against a political tactic that I refer to as "The Big Lie." It goes like this. If you have a weak legal position, you try to make a legal issue into a political battle. To win the political battle, you distort the truth. And the bigger the distortion, the louder you must say it to be believed. The Eastern Pequots showed a lot of courage in taking on the Big Lie being told about them, and McCaleb rewarded their courage with a show of his own fortitude.

The Big Lie the Eastern Pequots encountered didn't start with them. Instead, it started with an attack on the Mashantucket Pequots. Author Jeff Benedict wrote a book saying that the Mashantuckets weren't Indians at all and that they had conned the courts and the Congress in order to achieve their goal of opening Foxwoods Casino, one of the largest in the world. (Benedict thought that the interest in his book might carry him to success in his campaign for Congress, but that has certainly not been the case so far.)

The doubts Benedict created about the Mashantuckets quickly translated into doubts about the genealogy of the Eastern Pequot petitioners. Other politicians soon joined in, including representatives of three local governments who feared another Indian casino in their towns, and Connecticut Attorney General Richard Blumenthal. These opponents of the Eastern Pequots kept feeding the doubts until it became an article of faith in some quarters of Connecticut that the Eastern Pequots were not Indians.

This effort, of course, was profoundly demeaning to the Eastern Pequots. The BIA federal acknowledgement process in the best of times is dehumanizing and insulting. Imagine having to prove to the government who and what you are. Yet, the Eastern Pequots endured the insults and thoroughly proved that they descend from the Pequot Indians assigned to the Lantern Hill Reservation in the 1600s.

Indeed, there was never any real doubt about this. While the staff of the BIA's Branch of Acknowledgement and Research questioned certain aspects of the petition, the tribe's genealogy was never in serious dispute. Assistant Secretary McCaleb's decision is probably not the last word on this issue, but it certainly is the most thorough, unbiased and important statement yet that the Eastern Pequots are who they say they are.

The opponents of the Eastern Pequot petition also claimed that the Clinton Administration's preliminary decision (made by yours truly) in favor of the Eastern Pequots was the product of corrupt officials making decisions based on campaign contributions. They pointed to the fact that, in issuing a positive preliminary determination, I disagreed with and overruled the career staff of the BIA's Branch of Acknowledgement and Research. "How could a political appointee," they asked, "overrule the professionals and experts in the BAR?"

This argument was and is a poor one. Presidential appointees often overrule career staff. If they can't do so, then we should stop electing Presidents and just let the career bureaucrats run the Executive Branch of the federal government without supervision.

The opponents of the Eastern Pequots also had to overcome the fact that, since the 1600s, the State of Connecticut and its colonial predecessor continuously maintained the Lantern Hill Reservation and recognized its residents as members of the Eastern Pequot Tribe. The opponents had to make the almost nonsensical argument that three centuries of continuous state recognition were meaningless. Most knowledgeable people agree that state recognition, standing alone, cannot be conclusive of a federal acknowledgement petition, but certainly it is useful evidence that a tribe exists. The preliminary decision on the Eastern Pequot petitions relied to some extent on the fact of state recognition.

After the favorable preliminary decision, Attorney General Blumenthal filed a lawsuit asking a federal court to prevent the Interior Department from taking any further action on the petitions. The judge was so impressed with the Attorney General's arguments that, rather than preventing the BIA from rendering a decision as Blumenthal had requested, the judge ordered the BIA to speed up its decision on the Eastern Pequot petitions.

So the opponents of the Eastern Pequot petition began to look elsewhere for somebody who would buy into their theory that the preliminary decision was politically motivated. They complained loudly and long enough to get both the General Accounting Office and the Inspector General of the Interior Department to investigate whether federal acknowledgement decisions during the Clinton Administration had been improperly influenced by political contributions. Neither the GAO nor the IG was able to report any hint of such corruption. (Both noted that it was unusual for the Assistant Secretary for Indian Affairs to disagree with the BAR, but neither dared say that the Assistant Secretary could not do so.)

The report contained a significant error regarding the Eastern Pequot petitions. The IG reported that the BAR staff had written a memorandum to me opposing my favorable preliminary decision. Attorneys for the Paucatuck Eastern Pequots challenged the IG's finding in this regard, and the IG conceded that there was no such memorandum. Now a Connecticut Congressman wants to know why the IG's office changed its mind, raising the absurd specter of an investigation of the investigation. No investigation is necessary. The IG was wrong when he said that the BAR staff gave me such a memorandum. He confused the Eastern Pequot petitions with another petition. The IG made a mistake and, when it was pointed out, corrected the mistake.

After Assistant Secretary McCaleb's final determination, the politicians and editors opposed to the Eastern Pequots are a bit bewildered about what to do next. When Neal McCaleb was nominated to be Assistant Secretary, those same politicians and editors sang his praises and expressed their confidence that he would review federal acknowledgement petitions fairly. Now the Assistant Secretary they so roundly endorsed has concluded that the Eastern Pequots are a tribe, and they cannot credibly criticize him or his decision as being motivated by politics.

Do not expect, though, even after Assistant Secretary McCaleb's decision, that the politicians will admit they were wrong all along. Indeed, they already have begun work on the next line of attack. "The process is flawed and unfair," they say.

The process is flawed, of course, but not because it makes federal recognition too easy to achieve. To the contrary, the process has become too elaborate and expensive. The BAR imposes such strict requirements for recognition that even the most worthy and widely known tribes may find themselves unable to provide the documentary evidence of their history that the BAR requires. Moreover, the current regulations are inadequate for what has now become an adversarial adjudicatory process.

Flaws that work against the tribes are of no concern, though, to the opponents of the Eastern Pequots. So now we will hear over and over from the Connecticut politicians about how bad the federal acknowledgement process is. Indian country only needs to ask itself this: Would these same politicians be complaining about a flawed process if the Eastern Pequot petitions had been denied? No, they would not. In the end, their definition of a flawed process is one that yields a decision with which they disagree. Their position is morally and intellectually bankrupt.

So the Eastern Pequots withstood the Big Lie and are a step closer to what they deserve. Two Administrations, one Republican and one Democrat, have reached the same conclusion, that the Eastern Pequots are who they say they are, that they are an Indian Tribe within the meaning of the Constitution and therefore entitled to a government-to-government relationship with the United States.

It must be a proud moment for them, and Indian country should welcome their return to the family of Indian nations. They still will have to fight to protect what they have gained, but like the rest of Indian country, they know how to do that. They've been doing it for centuries.

And as for their adversaries in Connecticut, well, they will keep fighting, too. A great danger of the Big Lie tactic is that you just might end up believing your own Big Lie. Moreover, having persuaded much of the public of the Big Lie, they must continue to espouse it, lest they be accused of insincerity. That is the trap into which the opponents of the Eastern Pequots have fallen.

There is a saying among lawyers: "If the law is against you, argue the facts. If the facts are against you, argue the law. And if both the facts and the law are against you, pound the table and demand justice." That faint pounding noise that Indian country is hearing from the northeast is the sound of Connecticut politicians and their lawyers demanding justice.

Kevin Gover, a columnist for Indian Country Today, is a partner is the Washington, D.C. office of Steptoe & Johnson LLP. Mr. Gover's practice focuses on federal law relating to Indians and on Indian tribal law. He is the former Assistant Secretary for Indian Affairs in the U.S. Department of the Interior.