IF AT FIRST YOU DON’T
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
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.