SUTTON, Mass. - Political pressures have delayed a federal decision on
Nipmuc Nation acknowledgement yet again, but it's not a story that critics
of "the recognition process" would like to tell.
R. Lee Fleming, director of the Office of Federal Acknowledgement (OFA),
wrote leaders of the central Massachusetts applicants April 21 announcing
another 45-day delay in meeting the deadline for a final decision, which he
set last fall at May 1. The new deadline will be June 15. Two groups have
pending petitions, the Nipmuc Nation of Sutton and the Webster-Dudley Band
of Chaubunagungamaug Nipmuck Indians. The Sutton-based nation actually
received a positive finding in the last hours of the Clinton
administration, only to have it suspended and then reversed by Bush
Fleming's letter gave some insight into the obstacles facing OFA. It turned
out that a substantial cause of the missed deadline was the time his
shorthanded office had to devote to answering its political attackers.
The team working on the Nipmuc(k) petitions, wrote Fleming, previously
prepared the positive finding for the Schaghticoke Tribal Nation of Kent,
Conn. They were swamped by the furious response from Connecticut's
politicians, which included a Congressional request for an Inspector
In Fleming's description, "the Department [of Interior] received
Congressional inquiries concerning the Schaghticoke record which required
OFA, in particular the Schaghticoke/Nipmuc(k) team, to prepare responses
for the Department in addressing these concerns. In addition, several
Congressmen requested an Inspector General (IG) investigation of the
Schaghticoke decision, and the Secretary of the Interior directed that an
immediate IG investigation take place to resolve these concerns. This
unexpected aftermath of the Schaghticoke final determination interrupted
the Nipmuc(k) team's work since March 2, 2004."
Fleming said his staff also diverted energy into preparing for
Congressional hearings. (He declined to observe that a main question at
these hearings is why it takes so long to process recognition petitions.)
"Some of the Nipmuc(k) team," he wrote, " were required to spend time
preparing comments and testimony for Congressional hearings of March 31,
2004, April 1, 2004, April 21, 2004, and May 5, 2004. Time also is being
spent on follow-up questions to these hearings."
In addition, he said, two team members were "unexpectedly deposed" in
discovery proceedings in a lawsuit over recognition of the Mashpee
Wampanoag tribe on Cape Cod, Mass. And finally, he said, a court-imposed
timetable for the petition of Connecticut's Golden Hill Paugussetts was
putting pressure on OFA's peer review process, which included the Nipmuc(k)
As a result, Fleming once more switched deadlines for the Nipmuc
petitioners, who have not gone to court, with another tribe, which had.
Last fall, he leapfrogged the Schaghticoke petition, which was under a
timetable set by a federal judge in Hartford. One result of the April 21
letter is that the Golden Hill Paugussett tribe based in Bridgeport will
hear its final determination about a week before the Nipmuc(k)s.
"I'm speechless," said Nipmuc Nation ChiefWalter Vickers in an official
"On top of all else, now we have the litigation involving other tribes'
petitions continuing to penalize us - just because we are one of few tribes
not to bring suit against the BIA for not meeting its own established
deadlines. Now we will review quickly all options; and decide on a course
of action in a few days."
One of the options would be to follow the example of other tribes suing
under the Administrative Procedures Act, which requires the federal
bureaucracy to provide timely decisions. Weighing against that, however, is
the fear that a suit would introduce further delays beyond the extended
Fleming's letter gives a picture of the recognition process that is almost
the exact opposite of the criticism loudly voiced by Connecticut
politicians and echoed by their contacts in the national press. In the view
of Connecticut Attorney General Richard Blumenthal, tribal applicants have
been artificially assembled by financial backers seeking lucrative casinos,
who use political influence to push petitions through a compliant BIA. In a
fairly representative statement issued in response to the Schaghticoke
recognition, he called the BIA, "this rogue agency, out of control,
lawless, ready to twist and distort logic and law in reaching a result
driven by money and politics."
This rhetoric appears to have personally offended senior officials, not
only at the BIA, but also in the office of Interior Secretary Gale Norton.
Interior Department spokesman Dan Dubray has taken the unusual step of
personally defending the BIA against Blumenthal's attacks.
The recently appointed Assistant Secretary-Indian Affairs David Anderson
has recused himself from the Nipmuc(k) petitions and in fact from all
recognition decisions because he was in a business partnership with
Minnesota businessman Lyle Berman, whose company Lakes Entertainment, Inc.,
has provided undisclosed millions for the Nipmuc Nation petition. (The cost
of research and legal fees for other successful recognition efforts in New
England has been said by tribal leaders to reach $10 million.) Deputy
Assistant Secretary Aurene Martin has announced she will make the Nipmuc(k)
In testimony April 21 before the Senate Indian Affairs Committee, Martin
emphasized, "When the Department acknowledges an Indian tribe, it is
acknowledging that an inherent sovereign continues to exist. The Department
is not 'granting' sovereign status or powers to the group, nor creating a
tribe made up of Indian descendants." The committee was examining a bill
introduced by U.S. Sen. Ben Nighthorse Campbell, R.-Colo., to speed up the
recognition process. Although Martin agreed with the call for more
resources for OFA and for speedier decisions, she criticized the bill for,
in the Department's view, loosening existing criteria for federal
"It is of the utmost importance," she said, "that thorough and deliberate
evaluations occur before the Department acknowledges a group's tribal
status, which carries significant immunities and privileges, or denies a
group Federal acknowledgement as an Indian tribe."