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Vermont state agencies clash over recognition authority

MONTPELIER, Vt. - The chairman of the Vermont Commission on Native American Affairs is seeking independent legal representation for the commission after clashing with the deputy attorney general over who has the authority to recognize the state's Abenaki tribes and bands for the purpose of protecting Indian artists and artisans under the federal Indian Arts and Crafts Act of 1990.

Mark Mitchell, Abenaki, the VCNAA chairman, said that a bill passed last year giving long-sought recognition to the ''Abenaki people'' and establishing the commission, also gave the commission authority to recognize Vermont's Native tribes and bands for the sole purpose of protecting Native artists under the federal act.

Deputy Attorney General

William Griffin said the legislation has already given state recognition to ''the Abenaki people,'' and the commission's role is to recognize individual Native artists.

The federal act requires Native artists to be from an Indian group ''that has been formally recognized as an Indian tribe by a State legislature or by a State commission ... legislatively vested with State tribal recognition authority.'' The terms ''Indian'' and ''Indian tribe'' are narrowly defined.

''The state law did not identify any tribe; it just recognized all the Abenaki people of Vermont. That's not the same as formally recognizing a tribe or band within the meaning of the federal act. For the commission to have the authority to permit the creation, labeling and sale of Native American arts and crafts, the state legislation cited the federal act and vested us with the authority to develop criteria to identify tribes and bands for the sole purpose of protecting an individual under the act,'' Mitchell said.

Griffin said that the Legislature has already ''recognized the Abenaki people.'' At a Jan. 25 meeting, he said the commission does not have the authority to designate ''Native American'' status to Vermont's tribes or bands, but only to recognize individuals who are qualified to sell arts and crafts labeled as Native American products.

''I haven't found anything that indicates the commission is to determine which group is legitimate and which group is not. I think the Legislature itself addressed that by recognizing all Abenaki people, whether they're connected with a particular group or not. The Legislature has pretty clearly recognized the Abenaki people and all Native American people as a minority population,'' Griffin said.

Meredith Stanton, director of the Indian Arts and Crafts Board (www.doi.gov/iacb), said the authority to recognize tribes and bands is vested in the Legislature, but can be delegated to a commission or other organization.

The situation in Vermont is ''odd,'' Stanton said, ''but if you're asking me if the language of the state bill meets the federal act for formally recognized tribes - I'm not an attorney, but I would say no,'' Stanton said.

The divide between the two state agencies has led the commission to ask the legislature for other legal representation. Mitchell suggested an attorney from the Commission on Human Rights.

The VCNAA is at a ''disadvantage'' being represented by the attorney general's office, Mitchell said, because that office has denied the existence of the state's American Indian people.

''As those who follow Vermont history know, there's been a rash of judicial decisions over past years that simply continue to erode tribal sovereignty and immunity. In past statements, the attorney general's office has denied the continuous existence of my people and Mr. Griffin's current opinion persists to undermining that recognition. I'm not comfortable leaving the decision, about who is and who is not a Native American, to an office with such a flagrant conflict of interest,'' Mitchell wrote.

Griffin denied that the attorney general's office is biased against Indians.

''I'm sorry they feel that way, but that's not correct. The attorney general's office has pursued discrimination complaints on behalf of Native Americans. We've advised state agencies to acquire land where they've located Native American remains. We've gone to court on behalf of Native Americans to protect grave sites,'' Griffin said.

The deputy attorney general has drafted a procedure for the commission to recognize individuals. It would require each individual Native artist to file a long list of documents with the commission supporting his or her claim to be a ''Western Abenaki craftsperson.''

The list includes genealogical and kinship information that is usually filed with tribes as part of the membership enrollment procedure and is protected information under privacy laws.

The deputy attorney general's procedure would also require the commission to ''accept and consider comments'' from the public on each preliminary approval and publish a list of approved applicants' names on its Web site.

The idea of a list of Indians resonates badly for Vermont Natives, who were subjected to a draconian state-sponsored eugenics program in the 20th century.

''Who would want to be on that list?'' Mitchell asked. ''An individual list is similar to the Vermont Eugenics Study and Schindler's list. Eliminating recognition of bands would once again eliminate continuity, history, community and a way of life.''

Unless the deputy attorney general can provide documentation from the Interior Department that ''the vagueness of the state bill - recognizing people versus tribes - can protect individuals under the federal act, the commission will move forward in identifying tribes and bands,'' Mitchell said.

The commission has worked for seven months drafting the criteria for recognition.

''We didn't reinvent the wheel. We reached out to Indian country and other states to see what they did and tried to put the Vermont story forward in the criteria.

''The document is available on the commission's Web site at www.vcnaa.com, and comments from Indian country are encouraged,'' Mitchell said.

Under the commission's criteria, it would be up to the recognized tribe or band to certify individual artists as enrolled or non-enrolled tribal members.

The commission will meet again on March 22; Mitchell said he expected a positive vote on the criteria for recognizing tribes and bands.