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Velky to Washburn: Third Party Fed Rec Veto Is Unconstitutional

A proposal granting a third party veto power over a tribe’s effort to re-petition for federal recognition is unconstitutional says one tribal chief.

A proposal granting a third party veto power over a tribe’s effort to re-petition for federal recognition is unconstitutional, according to the chief of the Schaghticoke Tribal Nation.

In a May 27 letter to the Interior Department’s Assistant Secretary – Indian Affairs (ASIA) Kevin Washburn, Schaghticoke Tribal Nation (STN) Chief Richard Velky said that the discussion draft of changes to the federal recognition regulations issued last spring was well received in Indian country. But not so with the proposed regulations announced in May, which included a new supplemental provision giving third parties that have been involved in litigation against tribes veto power over those tribes’ right to re-petition. Tribes would have to go to the same third party that fought its federal recognition at the Bureau of Indian Affairs, the Interior Board of Indian Appeals and/or in federal court to get their consent before re-petitioning. In Connecticut, which has fought indigenous sovereignty for almost 400 years, the likelihood of that happening is slim to none, Indian leaders say.

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Moreover, the third party veto would be discriminatory, Velky said. “Unfortunately, the proposed rule's supplemental provision granting third parties the right to object or consent to any tribal effort to re-petition does not, I believe, comport with the due process and equal protection principles of our Constitution,” Velky wrote. “Nor does the U.S. Constitution provide that a state and its political subdivisions may exercise an absolute veto over the exercise of constitutional authority vested exclusively in the Federal government.”

ICTMN received the letter from the Velky. Interior Department spokeswoman Nedra Darling could not comment on Velky’s letter.

For STN and the Eastern Pequot Tribal Nation (EPTN), the appearance of the third party veto in the proposed regulations was a case of déjà vu all over again of the pummeling they endured at the hands of the state’s politicians. The proposed veto applies only to the state of Connecticut where Sen. Richard Blumenthal (D-CT), then the state’s attorney general, led a successful effort in 2005 to reverse EPTN and STN’s federal acknowledgments, which were issued in 2002 and 2004, respectively. After Blumenthal led an orchestrated campaign of opposition against STN by local, state and federal elected officials and an anti-Indian sovereignty group and its powerful White house-connected lobbyist, the BIA in an unprecedented move took away both tribes’ federal acknowledgment.

Blumenthal began stirring up opposition to the proposed new rules last year when they were announced. The third party provision was included after Connecticut Gov. Danell Malloy hand delivered a letter to President Barack Obama in February claiming federal recognition of Connecticut tribes would be “devastating” because they might file land rights lawsuits and open casinos. He failed to explain how the $5.2-plus billion in Indian gaming revenues contributed to state coffers by the Mashantucket Pequot Tribal Nation and the Mohegan tribe have been “devastating” to Connecticut.

RELATED: Blumenthal Stirs Opposition to Federal Recognition – Again

In his letter to Washburn, Velky reminded the ASIA that former Acting Assistant Secretary Aurene Martin, who issued STN’s federal recognition, described Schaghticoke’s petition as “the best” that had been reviewed during her tenure at the department. The state “ultimately prevailed … with the former Republican Administration to undo” STN’s federal status, and now it’s trying again, Velky wrote.

“It is indeed ironic … that the State of Connecticut would engage in such a public, political battle against a tribal nation that the State itself has recognized for nearly 300 years and for which it established a reservation centuries ago. Today, the State of Connecticut wishes to turn its institutional back on that history and assure that the United States government does not follow Connecticut's own historical actions,” Velky wrote. “[T]he state seeks only to assure that the tribes of Connecticut never attain recognition by the Federal government.”

In a phone interview with ICTMN, Velky said that STN will not re-petition for federal recognition and so will not seek the state’s “consent.” “I’m not looking to re-petition; I’m looking to have the Schaghticoke Tribal Nation’s federal recognition restored,” he said. “We feel confident that all the documentation we submitted met the seven criteria until political influence got involved after we were recognized in a final determination and the politicians led by Blumenthal managed to take the BIA right back to the preliminary findings. The reversal of our federal recognition was achieved by ignoring all of our responses to the preliminary finding and to the technical assistance. Everything we did – enrolling the additional members, the scholarly work on marriage rates, the carry-over of political authority and community in the 19th century – was disregarded.” The BIA even refused to open and consider a packet of documents with new evidence that the Nation submitted. “That should never have been allowed. It was outrageous. We should never have been reversed. That was a denial of our rights, an enormous injustice,” he said.

Velky said he expects Connecticut will once again request an extension to the comment period that ends August 1 as it did last year. “They wait for all the comments to be submitted then they put in their comments so no one has the chance to comment on what they said. And then they boast in the news about the pressure they’re applying in D.C.,” Velky said.

In ending, Velky commended Washburn for his commitment to Native Americans and expressed confidence that “despite external political pressures being brought to bear on this administration, you have the integrity, honor, and stature to maintain an open mind and a standard of fairness in the face of such strong political opposition.”

The proposed regulations, other documents and a schedule of consultations are available on the Bureau of Indian Affairs (BIA) website.