Schaghticoke marriage rates may have met precedents

KENT, Conn. – When Interior Associate Deputy Secretary James Cason overturned the Schaghticoke Tribal Nation’s federal acknowledgement, one pillar of his decision was the claim that the tribe failed to meet a criterion for marriage rates between tribal members, but internal agency documents indicate there were no hard and fast rules or precedents for calculating such marriages.

Documents obtained under the Freedom of Information Act show that the BIA accepted various methods of calculating marriage rates – sometimes based on the number of marriages, sometimes on the number of partners and, in at least one case, on both.

The STN’s federal recognition of January 2004 was rescinded on Oct. 12, 2005, after an appeal by state Attorney General Richard Blumenthal and a campaign of pounding pressure on Interior and the White House by Blumenthal and other Connecticut officials. A local anti-Indian, anti-casino group, and the powerful Washington, D.C., lobbying firms of Barbour, Griffith & Rogers and Perkins Coie, helped the effort.

The tribe is in the middle of an administrative procedures appeal of Cason’s decision, which names Cason, Interior, former Interior Secretary Gale Norton, the BIA, the Office of Federal Acknowledgement and the Interior Board of Indian Appeals as defendants. The appeal cites allegations of due process violations and improper political influence.

In rescinding the tribe’s federal recognition, Cason gave weight to the opponents’ argument that the tribe did not meet a 50 percent threshold for endogamous marriages – marriages between two tribal members – during some decades of the 19th century. A 50 percent endogamous marriage rate can be used as “carryover” evidence to prove a tribe’s continuous community and political authority – two of the required seven criteria.

The opponents claimed the tribe erred by counting the number of members who married other members, rather than the number of marriages.

The issue was further complicated by a “supplemental transmittal” on Dec. 2, 2004, from the OFA to the IBIA, saying that the tribe’s positive final determination was “not consistent with prior precedent in calculating rates of marriage.”

“Previous acknowledgment decisions interpret [the regulations] to require that 50 percent of the marriages are between members of the group. In contrast, the Summary for STN inadvertently relied on the number of members of the group who married other members, which results in a higher count,” the document said.

Neither the OFA nor the opponents explained how a tribe could reach a 50 percent endogamous marriage rate by counting marriages rather than individuals, since a marriage count would require 100 percent of tribal members marrying each other in order to reach 50 percent.

In re-checking their calculations of marriage rates for STN, the OFA prepared a document titled “Precedents in Calculating Marriage Patterns” that outlines “prior precedent.”

The document refers to the 1997 Official Guidelines to the Federal Acknowledgement Regulations, which the OFA says are intended as “plain-language” answers to petitioners’ questions about the acknowledgement process and criteria. For example, the question “What’s the easy way to show that we have a modern community and had a tribal community in the past?” is answered in the guidelines by the statement that a petitioner can demonstrate “more than half of your group’s members marrying each other.”

“However, a review of the OFA’s precedents in the matter of marriage patterns reveals that calculating endogamy is anything but simple,” the OFA document states. The OFA document includes a table demonstrating “just some of the variations that have appeared in OFA professional reports and summaries under the criteria which are supposed to be used by petitioners’ researchers for ‘how-to’ guidelines. Please note the number of times ‘unclear’ appears in the table.”

Of the nine tribes included in the table, four used the number of marriages to calculate the percentage of endogamous marriages; three tribes used an “unclear” method that “probably” counted individuals rather than marriages; STN used individuals; and one tribe used both marriages and individuals.

In a briefing memo dated Nov. 16, the OFA said the difference was that other tribes did not use the counts to prove political authority and community. The period in question in STN’s petition is 1841 to 1870. The tribe has “extensive evidence to demonstrate community throughout the entire 19th century,” the OFA wrote.

In a declaration filed Nov. 28, 2004, Steve Austin, STN’s cultural anthropologist, said his calculations of marriage rates based on individuals was the method used by the OFA when he worked as a BIA researcher in the 1990s.

“The endogamy rate is a calculation of the choice of each tribal individual to marry inside or outside of their tribal community. When two tribal members marry each other it is counted as two individuals who have each chosen and endogamous marriage. My analysis of Schaghticoke endogamous marriage rates followed that [OFA] practice,” Austin said.

The tribe’s attorneys will conduct discovery – take testimony under oath – from Cason and Norton in January. Once discovery is completed, the federal judge will set a schedule for filing motions for summary judgment by all parties. STN’s motions will address the issue of marriage rates and all other issues raised in the tribe’s appeal, including the role of state recognition in federal acknowledgement decisions.