KENT, Conn. - The Schaghticoke Tribal Nation wants the BIA to explain the
alleged errors it discovered in its analysis of the tribe's petition for
federal acknowledgement 10 months after the agency issued its final
decision granting the tribe federal status.
In a motion filed in U.S. District Court June 15, the tribe asked Judge
Peter Dorsey to order the BIA not to publish a reconsidered final
determination without an explanation from the Office of Federal
Acknowledgement (OFA) concerning a "Supplemental Transmittal" it issued
Dec. 2. The document claims the OFA miscalculated marriage rates, and
advises that the BIA's final positive determination "should not be affirmed
on these grounds absent explanation or new evidence."
The tribe's motion also asks to court to order the Department of the
Interior to allow the tribe to provide new evidence for the 19th century
historical periods the OFA has questioned retroactively.
This latest twist in the tribe's 24-year saga in pursuit of federal
acknowledgement comes barely a month after Interior's Board of Indian
Appeals (IBIA) vacated the BIA's final positive acknowledgement decision
issued in January 2004, and sent it back to the BIA for reconsideration. A
decision is due Sept. 12.
The BIA's final determination had been appealed by state Attorney General
Richard Blumenthal and a coalition of anti-casino, anti-sovereignty towns
and groups. The 300-member tribe has a 400-acre reservation on Schaghticoke
Mountain and hopes to open a casino in a welcoming host community.
That action was followed two weeks later by an order from BIA Acting
Principal Deputy Assistant Secretary Mike Olsen directing the Schaghticoke
Tribal Nation and its opponents not to submit new evidence or try to
communicate with anyone in Interior.
Eric Weichmann, the tribe's lawyer, said the IBIA process was "unacceptably
compromised" by the OFA's supplemental transmission, which he called an
"ultra vires filing" - a legal term meaning beyond the scope or in excess
of legal power or authority - because the document was filed three days
after the tribe's deadline for submitting its final briefs.
The OFA document was "unprecedented, calling into question its own final
determination," Weichmann said.
In the document, the OFA said it may have miscalculated the number of
Schaghticokes who married within the tribe during some parts of the 19th
century. Intra-tribal - or endogamous - marriage rates of 50 percent or
more qualify as evidence of continuing community and political authority:
two of the criteria a tribe must meet for federal acknowledgement.
When an individual tribal member marries outside the tribe, it is counted
as one marriage. But the OFA said it may have unintentionally counted
individuals instead of marriages when calculating intra-tribal marriages,
thereby doubling the intra-tribal marriage rate.
"The [OFA] provided no explanation of its change in position and no clear
statement of how this position would affect the ultimate disposition of the
matter ... To rest the [BIA] decision on information to which STN is denied
access violates the most basic principles of fundamental fairness,"
The OFA also failed to provide an explanation as to how a tribe could have
a more than 50 percent intra-tribal marriage rate unless individuals,
rather than marriages, are counted. The endogamous marriage rate could
never be higher than 50 percent even if every tribal member married another
tribal member if it is calculated by marriage rather than by individual.
Weichmann said the tribe's requests for technical assistance were unfairly
denied by the IBIA and the BIA.
The Schaghticoke petition was processed under a negotiated court order
involving all parties, which delineated timelines and procedures.
That court order "has been caught up in a political maelstrom," Weichmann
said, caused in part by a citizens organization called TASK - Town Action
to Save Kent - which set out to raise $2 million to fight the tribe's
recognition. TASK hired the nationally known lobbying firm of Barbour
Griffin & Rogers to influence Congress to overturn the Schaghticoke
In May, the court granted the tribe's request to conduct discovery to see
if members of the group or elected officials violated the court order.
The latest motion asks the court to order the BIA to hold technical
assistance meetings by July 15, followed by a 90-day period for the tribe
and its opponents to submit briefs, and a reconsidered final determination
within 120 days of the technical assistance meeting.
Additionally, the motion asks the court to issue its decision as soon a
possible and not wait for the expiration of the 21-day period ordinarily
permitted for filing opposition briefs.