Dooley Real Estate

Raising the Schaghticoke’s hopes and Kent’s concerns

Early this summer, the Bureau of Indian Affairs issued what it called a “preliminary discussion draft” which outlines changes to the existing tribal recognition criteria. The proposed new criteria, which would substantially lower the evidentiary bar, could have significant consequences for Kent and Connecticut.

Currently, a petitioning group must establish that it descends from a historical tribe, has continuously existed as a distinct community, and has exercised political authority over its members since historical times.

Federal recognition for Native American groups enables them to receive federal health, educational, and infrastructure benefits, as well as confers a semi-sovereign status which substantially exempts the tribe from local and state control. This so-called “domestic sovereign” status means that they are also immune from local and state taxation and land use control. If this were all, the question of federal recognition would be a less explosive issue. But it isn’t. Land claims and casinos have raised the ante.

In the 1970’s, successful litigation by the Penobscot and Passamaquoddy tribes in Maine resulted in the Maine Indian Claims Settlement Act of 1980. The final judgment awarded $81.5 million to the tribes on the grounds that the State of Maine had failed to seek federal approval under the 18th century Indian Non-Intercourse Acts. This legislation required Indian land sales be approved by Congress.

In New England, where the tribes had existed before there was a federal government to recognize them, the Maine decision caused a flurry of recognition efforts by tribes seeking the return of, or compensation for, reservation lands sold under state auspices. One of the reasons Kent’s Schaghticokes are seeking recognition is to acquire standing to pursue land claims for approximately 2,000 acres on the west bank of the Housatonic.

The recognition movement gained impetus with the passage of the 1988 Indian Gaming Regulatory Act requiring states to allow casino gambling on reservation lands if it was permitted anywhere in the state. Foxwoods in Ledyard came about because in Connecticut there was a little noticed law permitting non-profit entities (fire departments and churches) to hold “casino night” fund raisers. Ironically, the municipal tennis courts beyond Templeton Farms in Kent were funded in part by just such an event. Both Schaghticoke groups claim they have no plans for a casino in town. But either of them could acquire more suitable land elsewhere and petition the BIA to take it into trust (adding it to their reservation) if they gain recognition under the new proposed criteria.

In fairness to the BIA’s Office of Federal Acknowledgment (OFA) and newly appointed Assistant Secretary of the Interior Kevin Washburn, the new recognition criteria are not primarily aimed at gaining recognition for previously denied tribes. They are the result of long-standing Congressional and Administration dissatisfaction over the expense of preparing an application and the length of time it has taken the OFA to process them. In a letter sent this summer to tribes and petitioning groups announcing a series of consultation meetings held around the country, the OFA stressed that its goal was to bring “efficiency and transparency” to the acknowledgement process.

However, by reducing the time period from which a petitioning group must demonstrate that it has existed as a community with political control over its members and allowing the existence of a state recognized reservation to trump other gaps in the application, many believe the draft criteria water down the standards for recognition. A western tribe complained at the meeting in Oregon, that the new criteria would shift the standard to a more racial (descent from Native Americans) analysis at the expense of evidence of historical community and political control.

In Connecticut, Governor Malloy and a Congressional delegation have requested an extension of the discussion period in order to have more time for review and comment. There is understandable political concern because three previously denied Connecticut tribes may be able to earn recognition under the relaxed proposed standards. This raises the potential for extensive land claims, casino bids and conflict with the exclusive slot machine compacts the State has with the Mohegan Sun and Foxwoods casinos. It’s a tough balancing act since most political observers agree that the recognition process is broken—whether by unreasonable standards or by the inability of OFA staff to efficiently process complex submissions is an open question.

Kent’s Schaghticokes, represented by a non-resident majority calling itself the Schaghticoke Tribal Nation (STN) were denied federal recognition several years ago after a long, bitter and expensive application process (they were funded to the tune of $13 million by casino interests). If the proposed new, significantly relaxed, criteria are adopted, both they and the smaller rival faction, the Schaghticoke Indian Tribe (SIT), may be expected to reapply. And one of them could very well succeed.