The Schaghticoke Tribal Nation has asked the 2nd Circuit Court of Appeals to review a lower court decision to dismiss the nation’s land rights lawsuit in Kent, Connecticut.
The unexpected legal move comes more than seven years after the Bureau of Indian Affairs, in an unprecedented action, overturned its own decision to acknowledge the Schaghticoke Tribal Nation (STN) following a notorious year-and-a-half campaign of political pressure from Connecticut’s anti-Indian and anti-Indian casino politicians, wealthy landowners in Kent where the tribe has its reservation and more than a dozen municipalities around the state.
The nation appealed the reversal of its acknowledgment in federal court but the judge denied the appeal in 2008 largely because he believed the federal decision makers who said they were not influenced by the frenzy of political pressure which they acknowledged was brought to bear upon them. The nation’s land rights lawsuits, which were filed in 1985, 1998 and 2000, remained pending until late last year when the defendants began court action to dismiss them.
The Schaghticoke originally had around 2,500 acres set aside for them in the early 18th century during the colonial era before the establishment of the United States of America. As with other northeastern woodlands tribes, the Schaghticoke land was encroached upon, sold off, and otherwise illegally taken during the late 18th- and 19th centuries in violation of the Indian Nonintercourse Act, the collective name of six statues passed from 1790 to 1834. The Nonintercourse Act prohibits the sale of Indian land without the approval of the federal government. The Act says, "No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution." The nation’s reservation is now reduced to around 400 acres of mostly rocky land on Schaghticoke Mountain in Kent in the northwest corner of Connecticut.
The STN’s land rights lawsuit includes three consolidated cases: the first was brought by the U.S. government seize 43.47 acres of tribal land that the government wants to include as part of the Appalachian Trail; the second and third were brought by the nation against defendants that include the federal government, the Connecticut Light & Power Company and a private prep school. The consolidated case seeks the restoration of around 2,100 acres of land.
Earlier this year, a federal court judge granted the defendants’ motions to dismiss the STN’s land rights lawsuit based on their argument of “collateral estoppel” – a legal doctrine in which an earlier decision by a court prevents subsequent court proceedings involving the same parties. In this case, the defendants are saying that because a federal court upheld the BIA’s reversal of the STN’s federal acknowledgment, the nation cannot go forward with its land rights lawsuit. The nation argues that a tribe does not have to be federally acknowledged to bring land claim lawsuits under the 1790 Nonintercourse Act.
The STN appealed the federal court dismissal to the 2nd Circuit Court of Appeals, which issued an order at the end of November setting February 25, 2013 as the deadline for the parties to submit their briefs.
Schaghticoke Tribal Nation Chief Richard Velky declined to comment for this story, but STN Attorney Ben Green of the Greenwich, Connecticut-based firm of Zeichner, Ellman & Krause provided the following prepared statement:
“The Schaghticoke Tribal Nation initiated these actions and is pursuing an appeal to preserve the integrity, identity and heritage of the tribe. The tribe has been recognized by the laws of Connecticut for more than 200 years. These cases are not about gaming. Indeed these claims and the tribe’s battle for recognition predate the advent of Indian gaming by many years. The tribe has never had any intention of developing a gaming facility on this land. With the exception of a single residence, the land which is the subject of these lawsuits is entirely uninhabited woodlands. The Schaghticoke Tribal Nation has always been open to discussions with those who currently claim ownership regarding possible reasonable accommodation between any conflicting interests. Assertions by any party or parties to the contrary are without merit.”
The STN is not the first non-recognized tribe to file federal land claims under the 1790 Indian Trade and Nonintercourse Act; the Golden Hill Paugusetts, another tribe located within the State of Connecticut, filed a federal land claim in 1994 for hundreds of thousands of acres running through the entire central area of the state. The claims were dismissed by a federal judge in 2006, who cited the Bureau of Indian Affairs’ denial of the tribe’s request for federal acknowledgment.
But Green argues in court documents filed during the past year that federal acknowledgment is not required to file land claims under the 1790 Indian Trade and Nonintercourse Act. He also points out the inconsistency of the defendants’ collateral estoppel argument. “Curiously embracing a process the opponents of recognition described as ‘flawed,’ ‘lawless’ and ‘corrupt,’ when the BIA favored (the STN’s) federal acknowledgment, the Government and Defendants now seek to misapply the doctrines of primary jurisdiction and collateral estoppel to convince this Court to rubberstamp the BIA’s 180 degree turn,” Greene writes in his June 2012 memorandum opposing the defendants’ request to dismiss the case. The STN attorney argues that the law in the 2nd Circuit Court itself is “clear and unambiguous” that “tribal recognition for the purposes of the Nonintercourse Act is not the same as tribal recognition pursuant to the BIA regulations.” He says the application of the Nonintercourse Act criteria and the BIA criteria can reach different results, and while courts may defer to the administrative agency’s decision, they are not required to do so. “The BIA determination does not divest this Court of its obligation to interpret the law,” Green writes.
The news of STN’s land rights court action raised concerns at the December meeting of the Kent Board of Selectmen, the Litchfield County Times (LCT) reported. “Just when town officials and, essentially, everyone else thought that the long battle for federal recognition by the Schaghticoke Tribal Nation had come to a final end with the last court decision against the tribe’s efforts, things took an unexpected turn this week,” the LCT reported. “The warning that the Schaghticokes … have a new card to play came up at a Board of Selectmen meeting … and beyond the news of a new legal maneuver, selectmen pondered a warning that changes at the federal level might swing momentum in favor of the tribe.”
Kent Town Attorney Jeffrey Sienkiewicz told the selectmen to be prepared to spend another $30,000 to fight the nation’s land rights appeal, the LCT reported. The town has already spent $292,000, largely to Sienkiewicz, to fight federal recognition for the tribe, the report said.