BIA Director Neal McCaleb might think he will avoid the controversies that ensnared (and still ensnare) his predecessors at BIA when he says he plans 'to listen pretty closely' to his staff on tribal recognition. But this is little guarantee that he will be able to do so.
If he tries to placate the political and press critics of the last two occupants of his office, he will likely find himself in a controversy to equal the Trust Fund debacle. Enemies of the recognition petitions now on his desk are taking a position that can only be called retro-genocide. Even worse, they are finding support from near-sighted elements of the Branch of Acknowledgment and Research.
Some of the genealogists, historians and anthropologists at BAR have shown themselves all too eager to betray the trust of the tribes they have befriended. Former BIA heads Kevin Gover and Michael Anderson have charged that current BAR staff leaked internal documents to virulent foes of tribal petitioners. Some staff who encouraged and helped shape these petitions have even jumped ship completely and taken consultants' pay from the lawyers now fighting them.
But these personal betrayals are small change compared to the mind-set toward tribal history that Gover says he encountered at BAR and that caused their open feuding.
Gover said, and the record bears him out, the professional staff has become so obsessed with its document-by-document analysis of tribal history, and leaf-by-leaf look at family trees that it has lost the ability to see a broad picture. Tribes with undeniable histories and continuity confronted unreasonable, almost impossible, standards of proof.
When Gover overruled negative staff findings in the cases that are now so controversial, he did so in the name of a standard of proof that would prevail in a courtroom. Some might argue that a mind-set is detached from reality indeed when it takes a lawyer to re-introduce common sense.
Just look at the Eastern Pequot cases, now in their final comment period. The original Eastern Pequot petition dates to 1978. The Paucatuck Eastern Pequots submitted another petition in 1989. Because the bitterly divided clans share a common history, the BAR is considering them together. (They are both cousins of the Mashantucket Pequots and the Mohegans, who already have federal status and enormously productive casinos.)
Neighbors of these tribes in southeastern Connecticut are fighting their recognition with an almost irrational fury, virulently supported by the state Attorney General Richard Blumenthal. These foes have made hay from leaks saying Gover approved these petitions over the objection of the BAR staff.
The propaganda line is that Gover is in thrall to casino interests, who do openly support these petitions, and that the Pequots are somehow not real Indians. But the details give a vastly different picture.
Federal regulations pose seven criteria for recognition, and both Pequot tribes easily meet five, including 'identification as an American Indian entity on a substantially continuous basis since 1900.' (In fact, unlike most applicants, the Pequots have furnished detailed evidence dating to 1650.) The sticking points are standards (b) and (c), continuous existence as a distinct community and continuous political autonomy through historical times.
The professional staff found gaps in the evidence for certain decades, but Gover said, 'Wait a minute. Isn't it a fact that these tribes still live on a reservation that Connecticut set aside for them in 1683? Hasn't the state, and its predecessor colony, dealt with them continuously since 1637, when it massacred a high percentage of their men, women and children in the Pequot War? Isn't there a seat assigned to them on the Connecticut Indian Affairs Council, a state agency?'
Gover ruled that all this state recognition had to count for something as context for the mounds of documents the BAR was sifting.
Denying the existence of the Pequots takes an intellectual effort of high magnitude. But Attorney General Blumenthal is up to the task. In a brief submitted Aug. 1, the close of the comment period, he argued bluntly that the eastern Pequot tribe was dissolved by the Pequot War of 1637.
The survivors were placed under the control of neighboring tribes for two generations, thus permanently ending their political autonomy. Their descendants on the Lantern Hill reservation in North Stonington were wards of the state, welfare cases not a political unit, by strokes of the keyboard,
Blumenthal is trying to do what Capt. Thomas Mason failed to achieve with sword and blunderbuss, to wipe out the tribe.
Blumenthal's position might be too extreme even for the BAR. If applied to European history, it would eliminate Norway, Finland, the Baltic republics, Rumania, Bulgaria, the Balkan states and Greece, not to mention Poland, which was split among its neighbors and completely dissolved twice during the recorded history of the Pequots. (The proposed positive finding for the Eastern Pequots in fact gave Poland as an explicit analogy to the fate of the tribe after 1637.)
If Blumenthal's standard of historical continuity were applied to Jewish history, it would mean the end of the state of Israel, and very probably the Jewish people.
But this extreme conclusion is the logical consequence of a narrow-minded focus on detail that seems to prevail at BAR. The staff there can do very careful work in analyzing documents. Its reports often catch inaccuracies in the standard histories. But a broader view is needed to do justice to the tribes and their living, breathing members with their complex family ties and long memories who are seeking federal validation.
This is what Gover sought to supply as a policy-making political appointee. McCaleb will do well to sustain the spirit of this logic.