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Report fails to calm tribal recognition dispute

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NORTH STONINGTON, Conn. ? Fights over New England tribal recognition will continue unabated in spite of a General Accounting Office study of the process, a survey suggests.

Opposing sides can't even agree on what the report says.

For Michael Anderson, former deputy head of the BIA and a target of the original investigation, the report vindicates his role in approving two tribal petitions later reversed by the new administration.

"They do not find any evidence that there has been any political or financial impropriety in recognition decisions," he said. "What it said is there is a lack of clear standards."

Yet several New England papers are finding quotes that appear to support their working assumption that casino backers are buying federal status for questionable petitioners.

The Boston Globe Nov. 8 summarized the conclusion: "whether a group wins recognition has 'less to do with the qualities and attributes of a tribe' and 'more to do with the resources' tribes and their financial backers 'can marshal to develop a successful political and legal strategy.'"

But Anderson said that quote "is not what the GAO concluded." Rather the words are taken out of context from the concluding paragraph in which GAO author Mark Gaffigan describes the "end result" of a loss of confidence in the current process.

Instead of a present-tense statement, as it appears in the Globe, the GAO is clearly describing a future hypothetical outcome in which "parties involved in tribal recognition may look outside of the regulatory process to the Congress or courts to resolve recognition issues." Anderson said.

He said the congressmen who requested the report last year, primarily Christopher Shays of Connecticut and Frank Wolf of Virginia, were making "slanderous" accusations of improper influence but the GAO failed to find any evidence. He complained that his critics "are not being held accountable when their charges are found to be groundless."

The GAO did criticize Anderson's decision to recognize the Hassanamisco Band of the Nipmuc Nation, based in central Massachusetts. His approval, granted in the last hours of the Clinton administration, was reversed by incoming BIA head Neal McCaleb.

A separate petition by the Chaubunagungamaug Nipmuck Indians was turned down by both Anderson and McCaleb.

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The GAO said the technical staff at the Branch of Acknowledgement and Research (BAR) recommended against the Hassanamisco Nipmucs "because the petitioner could only demonstrate that 48 percent of its members were descendants."

Anderson defended his decision even though it broke with precedent, said the GAO, "because the standard used for previous decisions was unfairly high."

The GAO continued, "Clear guidance on this aspect of the criterion is lacking." It observed that when the Interior Department revised its recognition standards in 1994, "it intentionally avoided establishing a specific percentage of members required to demonstrate descent.

"The current language under the criterion only states that a petitioner's membership must consist of individuals who descend from historic tribes ? no minimum percentage or quantifying term such 'most' or 'some' is used."

The GAO criticized Anderson for not explaining in his Nipmuc decision why he felt past standards were unfairly high. It said that "a lack of clear and transparent explanations ... may cast doubt on the objectivity of the decision makers, making it difficult for parties on all sides to understand and accept decisions, regardless of the merit or direction of the decisions reached."

The report affirmed however that the ultimate word on recognition rested with the top officials at BIA, not with the technical staff. "Ultimately, BIA and the Assistant Secretary will still have to make difficult decisions about petitions when it is unclear whether a precedent applies or even exists. Because these circumstances require the judgment of the decision maker, acceptance of BIA and the Assistant Secretary as key decision makers is extremely important."

Anderson declined to go into detail on his decisions, saying he wanted to wait for "an appropriate forum." He explained that he was eager to testify at a Congressional hearing or a court suit.

He said if the Nipmuc or the Duwamish, his other overturned approval, chose to sue the BIA, the case would equal the Cobell suit on the trust funds as an embarrassment for the Interior Department.

Anderson added that he agreed with most of the GAO's criticisms of the recognition process. He said he now supported "taking the process out of the BIA and putting it in an independent commission ? with new staff as well."

He said he lacked confidence in the current BAR staff "because it has been intimidated by the Connecticut attorney general and the towns," referring to the neighbors of the federally recognized Mashantucket Pequots, who own Foxwoods Casino Resort, and the two Eastern Pequot tribes now awaiting final recognition.

"That's true of the department as a whole," he added, "given its recent decisions."