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Washburn Hears Frustration, Anger Over Third Party Fed Rec Veto

Kevin K. Washburn was in attendance recently for a meeting where he listened to frustration and anger over the third party federal recognition veto.

Around 100 people attending a public session on the Bureau of Indian Affairs’ proposed new rules for federal recognition broke into spontaneous applause when Eastern Pequot Tribal Nation Chairman Dennis Jenkins spoke against a controversial provision that would allow certain third parties to veto a tribe’s ability to re-petition for federal status.

“This [proposal] is not only morally reprehensible; it is also arbitrary and capricious and not in accordance with the laws of the United States. … It is the worst kind of modern day genocide,” Jenkins said, as the crowd cheered, whooped and whistled.

Opposition to the third party veto provision, which was included in the proposed new rules under pressure from Connecticut politicians, turned out to be the hot topic of the day, dominating discussion during the BIA’s three-and-a-half hour public session held at the Mashpee Wampanoag’s new government offices and community center during the morning of July 29 (a closed formal consultation with leaders of federally recognized tribes took place in the afternoon). Not surprisingly, members of the three Connecticut tribes targeted by the proposed veto – the Eastern Pequot Tribal Nation (EPTN), the Schaghticoke Tribal Nation (STN) and the Golden Hill Paugussett (GHP) were on hand to listen and comment. The event was one of a series of public sessions and formal tribal consultations that have been held around the country on the proposed new rules. Assistant Secretary – Indian Affairs (ASIA) Kevin K. Washburn attended and ran the session.

Washburn published the proposed new rules in April, following up on draft regulations issued a year earlier that were welcomed in Indian country as repairing a system that’s been described as “broken, long, expensive, burdensome, intrusive, unfair, arbitrary and capricious, less than transparent, unpredictable, and subject to undue political influence and manipulation.”

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But between the draft proposal and the formal proposed rule a new provision slipped in giving third parties that have been involved in litigation with tribes absolute power to prohibit such a tribe from re-petitioning under the new rules. Sen. Richard Blumenthal (D-CT), who led a campaign to quash the new rules soon after they were drafted, acknowledged that the third party veto was added in response to Connecticut politicians’ requests.

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Blumenthal successfully opposed the GHP tribe, which was denied federal recognition in 2004, and led local, state, and federal officials in a campaign of political influence on Washington decision-makers to overturn the federal acknowledgment of the EPTN and STN, which they did on Columbus Day in 2005.

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The public session opened with an honor song and Mashpee Wampanoag Chairman Cedric Cromwell welcoming everyone. He praised Washburn for the proposed new rules, calling the ASIA “a champion – a strong champion – of Indian country and he’s doing a fabulous job.”

Washburn ran through a PowerPoint presentation that described the background to and development of the proposed new rules, then detailed the changes. Most changes are in revisions to the process. For example, the new rule would eliminate the “letter of intent” to petition and begin with the petition itself.

As for the criteria for recognition, “We currently have seven mandatory criteria. We propose to continue to have seven mandatory criteria, but we’re changing them slightly,” Washburn said. For example, the new rules would require tribes to prove continuous political authority and community since 1934 instead of 1789, aligning the review with the federal government’s repudiation of the allotment and assimilation policies of the late 1800s and early part of the 1900s; another would give weight to tribes for which the federal government has held land in trust since 1934 or tribes that have had state-recognized reservations since that date.

The proposed rule, explanatory information and comments are available here.

With the exception of the third party veto, the proposed new rules were almost universally applauded.

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Elaine Savattere, representing the Northern Cherokee Nation, thanked Washburn for the efforts to revise the rules. ”We wish to revisit the continued third party involvement. … In our research going back to the start of federal recognition this involvement usually turns out badly for the petitioner. This third party involvement was biased, arbitrary, discriminatory, self-serving, unfair and for the most part it continues till today. … If a tribe’s bid for federal recognition is successful based on historical data, then any failure should be based on the same criteria and not on self-serving statements from a third party.” Attendees again burst into applause.

Pushing back on the issue of third party participation, Washburn said, “We do need to have a rigorous process and we’ve got social scientists who can sift between good information and bad information, and determine whether it’s substantive or a rumor or something like that. … We need to have an open process, so we actually encourage third party participation so that anybody who’s interested in providing information can be heard. People don’t always like it but that’s sort of the American way – to get input from a broad swath of the public. … so that needs to be part of what we do.”

For Schaghticoke Tribal Nation Chief Richard Velky, Connecticut politicians’ involvement “behind the scene in Washington” was déjà vu all over again. “In 2004 we were granted our federal recognition and then we were attacked by the state of Connecticut,” Velky said. “It seems every time these politicians from our little state get involved all of the work that [the BIA] has been doing is changed and the change is always against the Indians.” Soon after the proposed new rules were announced, Velky wrote to Washburn that the third veto is unconstitutional.

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Velky noted that Blumenthal and Chris Murphy, Connecticut’s other senator, joined 48 other senators in calling for the end of the Washington, D.C. football team’s racist “Redskins” name. “I can understand how the Redskins name offends them and they want to be politically correct, and yet they can commit genocide on Indians in our state and nobody says s damn thing about it,” Velky said to an agreeing crowd.

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As for re-petitioning under new rules, Velky said, I don’t see it as re-petitioning, I see it as restoring what is rightfully ours.”

Pastor John Norwood (Lenni-Lenape Nanticoke), the co-chair of the National Congress of American Indians (NCAI) Federal Recognition Taskforce said that the resolutions NCAI passed years ago supporting federal recognition of the Eastern Pequot and Schaghticoke tribal nations have not been rescinded or changed; they are still in place representing the organization’s policy. He said the taskforce has discussed the third party “and we are of the position that any tribe that meets the criteria should not be derailed by any comments of any third party.”

Anthropologist Steve Austin, who worked on both STN’s and EPTN’s petitions, reminded Washburn that both petitions were approved by the Office of Federal Acknowledgement researchers and former ASIA’s “only to have them overturned on the basis of political opposition, not the facts of the case. … This is part of your responsibility to weed through some of the comments that come in from third party opposition that may have nothing to do with the facts of the case and everything to do with people who don’t want to see a casino in their neighborhood.”

Many more speakers were heard. Two people opposed the proposed new rules, claiming – with no explanation – that they were racially based and would harm tribal sovereignty.

In an interview after the session, Washburn told ICTMN that the idea behind reforming the regulations was not “to hit the reset button” for tribes that have already gone through the process to start over.

“My belief is we were doing this to correct the process going forward, not to deal with past issues. So having said that, we decided to make some very narrow allowances for re-petitioning; it seemed fair to do so in some ways,” Washburn said.

Regarding third party participation, Washburn said when someone has invested lots of time, money and energy opposing a petition they develop an equity – “so you can’t ignore them even if you don’t think their cause is righteous.”

Washburn reiterated that the major changes in the proposed new rules occur in the process with only modest changes in the criteria. “So even though we’re allowing re-petitioning on a very narrow basis I actually don’t think that very many tribes will be eligible… [Y]ou have to establish that the change in the rules really affects you and would have caused a different outcome.” The BIA has heard from members of the Senate – the body that oversees the BIA – that the federal recognition process is “broken” because it takes too long and is too expensive, not because it has produced illegitimate outcomes, he said.

All of the comments heard and submitted will be viewed carefully, Washburn said. “We’ll need to evaluate the arguments the tribal leaders present,” including their claim that the third party veto is unconstitutional, he said.

“The problem is if it’s unconstitutional, what’s the next step?” Washburn said, “It could be to get rid of that provision or to not allow re-petitioning.”