N. STONINGTON, Conn. — Eastern Pequot Tribal Nation members lit a sacred
fire on their Lantern Hill reservation on Sept. 9, intending to hold a
prayer vigil all weekend while awaiting the BIA’s final decision on the
tribe’s federal acknowledgement scheduled for Sept. 12.
But late that afternoon, BIA Associate Deputy Secretary James Cason faxed a
letter to tribal Chairman Marcia Flowers, saying the decision has been
delayed until Oct. 12 when reconsidered final determinations will be
rendered on both the Eastern Pequot and Schaghticoke tribal nations.
The Eastern Pequots and Schaghticokes received federal acknowledgment in
June 2002 and January 2004, respectively.
Both decisions were ferociously opposed by state Attorney General Richard
Blumenthal and towns surrounding each tribe’s reservation.
In May, the Interior Board of Indian Appeals vacated the BIA’s positive
determinations and sent both decisions back to the bureau “for further work
and reconsideration.”
The issues “are complex and voluminous,” Cason said.
While each determination is unique on its facts, they share commons issues,
Cason said.
“In addition, they share the issue of state recognition in common with the
reconsidered final determination on the Schaghticoke Tribal Nation
petition, which will be issued on or before Oct. 12. In order to ensure
that the reconsidered final determinations thoroughly consider all issues,
consistently interpret and apply the relevant acknowledgment principles and
laws, and do not prejudge matters in common with the STN, I need additional
time,” Cason said.
Flowers, who found Cason’s letter in the tribal office Sept. 10, received
the news with equanimity.
“We certainly appreciate the enormity of the task facing the BIA. The
associate deputy secretary has complex issues to decide, issues that will
chart the future of our people,” she said in a prepared statement Sept. 12.
“To those who spent the weekend in prayer, some on the reservation and
others in their homes, word of the delay was a disappointment. But in a
decision of this magnitude, integrity is what matters, not timing, and we
have confidence in the OFA’s [Office of Federal Acknowledgement]
decision-making process and that their reconsideration will affirm that we
meet the criteria for recognition,” Flowers said.
Schaghticoke Chief Richard Velky said it was “unfortunate” that the Eastern
Pequots learned of the delay so close to the scheduled deadline.
“The substance of their petition speaks as loudly as the fact that they
have already been recognized by the BIA. Schaghticoke joins the Eastern
Pequots in their prayer for a final positive determination. Schaghticoke
believes facts, not political pressure, should decide the final outcome,”
Velky said.
Blumenthal said he hoped Cason’s letter signals a denial of both tribes’
acknowledgements.
“This delay is hopefully a sign that the BIA is giving this Eastern Pequot
decision the careful deliberation — and denial — it deserves. The BIA has
a responsibility to review the facts and uphold the law. In this case, that
means denying recognition of both the Eastern Pequot and Schaghticoke.
“The Interior Board of Indian Appeals recognized that these petitions
deserved reconsideration. Now the BIA has the opportunity and obligation to
get it right this time,” Blumenthal said in a prepared statement.
The issue of state recognition played heavily in the IBIA decision to
remand the positive acknowledgements back to the BIA for reconsideration.
State recognition was used extensively as evidence in the 1994
acknowledgement of the Mohegans, a tribe that voluntarily detribalized in
the late 19th century.
In his appeals, Blumenthal argued that state recognition could only be used
to satisfy the criteria proving a tribe has existed as an American Indian
entity “on a substantially continuous basis since 1990, ” and could never
be used to prove the two criteria of continuous community and political
authority.
“We disagree,” the IBIA judges said in their ruling.
“We conclude that neither the acknowledgement regulations, nor BIA’s
interpretation of those regulations through guidelines and other
acknowledgement decisions, categorically precludes evidence of the
relationship between a state and petitioner from being considered for
[continuous community and political authority]. Instead, whether such
evidence is relevant, reliable or probative, and the proper weight to be
afforded it, must be determined on a case- and fact-specific basis,” the
judges said.
The judges agreed, however, with Blumenthal’s assertion that “implicit”
state recognition “at least” as described in the BIA’s final Eastern Pequot
decision, did not prove continuous community and political authority.
In order to do so, the BIA “must articulate more specifically how the
state’s actions toward the group during the relevant time period(s)
reflected or indicated the likelihood of community and political influence
or authority within a single group,” the judges said.
The ruling indicates that the BIA must improve its record, said Judith
Shapiro, a Washington, D.C. attorney who has represented Indian tribes for
more than 20 years, including the Schaghticokes.
“Some people write incorrectly that the BIA’s positive decisions were
‘overturned,’ as if everything was reversed. It’s not a reversal. The
decisions did not say, ‘These are not tribes. We hereby find they don’t
meet the criteria.’ They said to the BIA, ‘You’ve got to explain more
carefully why these positive determinations work. The record before us
doesn’t do it for us,’” Shapiro said.
