Updated: 1:15 p.m.
Washington – Connecticut officials are bracing for new federal Indian recognition rules hat could upend the state’s gaming agreement with the Mashantucket Pequot and Mohegan tribes, take swaths of land out of the state tax base, and likely allow for new casinos.
The new rules, which could be released by the Interior Department’s Bureau of Indian Affairs in the next few weeks, could result in federal recognition for three Connecticut tribes that for years have struggled, and failed, to receive that status and the privileges that come with it.
Hundreds of tribes across the United States are vying for federal recognition. But nowhere has the issue hit harder than in Connecticut.
Connecticut’s politicians – from the governor and attorney general to selectmen from small towns -- have flooded the BIA with public comments blasting the plan, and its senators have met with BIA Assistant Secretary Kevin Washburn, a member of Oklahoma’s Chickasaw Nation, to lobby against the proposal. During a recent trip to Washington, D.C., Gov. Dannel P. Malloy met with Interior Secretary Sally Jewell to criticize the plan.
The governor Wednesday released a letter delivered to President Obama, decrying some of the changes the BIA is considering. “For Connecticut, the consequences would be devastating" Malloy wrote. "The petitioning groups have filed or threatened land claims to vast areas of fully developed land in Connecticut. Such claims can cloud the title to real property in the claimed area, causing significant economic hardship to Connecticut residents.”
Gale Courey Toensing, a reporter for the Indian Country Today Media Network, who has been following the issue, noted that “Connecticut, led by Senator [Richard] Blumenthal, is leading the charge against the federal recognition process even though Blumenthal acknowledges [the system] is broken.”
After Washburn issued his draft proposal last July that would simplify the recognition process, his agency held field hearings in California, Oregon, Michigan and Louisiana to gather feedback. Connecticut was not even on the radar.
Blumenthal, a Democrat who fought the tribes’ efforts for recognition when he was Connecticut’s attorney general, said he hopes the BIA has had second thoughts about changing the recognition process.
“There’s nothing that says they have to renew the new regulations,” he said.
Besides land claims that could take hundreds of acres out of state and local tax bases, federal acknowledgement of new tribes in Connecticut could open the door to more Indian-run casinos in the state and the problems they might cause. But, perhaps more importantly, it's likely to void a lucrative multimillion-dollar agreement the Mashantucket Pequot and the Mohegan have with the state.
After the Mashantucket Pequot gained recognition in 1983 and the Mohegan in 1994, the tribes promptly moved to open casinos. In their struggle with former Gov. Lowell P. Weicker over legalized gambling, the tribes agreed to give the state 25 percent of their net revenue from their video slot operations. That revenue totaled $296 million last year, down from a peak of $430 million in 2007.
"The consequences [of new tribal recognition regulations] for Connecticut cities and towns and Connecticut taxpayers could be very significant, and the state would likely be required to renegotiate the established compacts with the state’s two federally recognized tribes should additional gambling, including new casinos, be established," said Jacklyn Falkowski, spokeswoman for the Connecticut Office of Attorney General George Jepsen.
In his public comments on Washburn's plan, Jepsen focused on the legality of changing the recognition regulations.
Washburn's new regulations would consider the fact that Connecticut established reservations for the Eastern Pequot, Golden Hill Paugussett and Shaghticoke as evidence the state recognized them as distinct political entities.
But Jepsen argued that's not the case, observing that the Eastern Pequot and Schaghticoke have already lost appeals in court when the BIA turned down their petitions years ago.
After weighing all the public comments on the plan, the next step in the process will be for the BIA to release preliminary regulations. North Stonington First Selectman Nicholas Mullane II expects Washburn to release those soon “unless somebody comes to their senses.”
“There are some indications they don’t give a damn,” Mullane said of the BIA. “They are going to do what they are going to do.”
Washburn declined several requests for an interview. But he gave The Connecticut Mirror a statement that said, “we plan to take into full account the specific concerns the [Connecticut] delegation has raised.”
"I appreciate the interest shown and input provided on the discussion draft related to the federal tribal recognition process,” Washburn said in the statement. “My office continues to review comments on the draft with an eye toward identifying components of a potential proposed rule that would meet our goal of improving fairness, timeliness, transparency and efficiency of the federal tribal recognition process.”
When he released his draft plan last year, Washburn said that today's recognition process needs reform because it is “expensive, burdensome, less than transparent, and inflexible.”
Those regulations require a tribe to be continuously identified as an American Indian entity since 1900 and to have existed as a distinct community since “historical,” meaning Colonial, times.
The regulations also require tribes to provide documents describing their governance procedures and membership criteria and a list of current members who descend from a historical Indian tribe and who are not also members of another federally recognized tribe.
Washburn’s draft proposal would eliminate the requirement that a tribe has maintained continuous cultural community and political authority since historical times. The BIA’s proposal would change that date to 1934.
The Schaghticoke tribe lost its bid for recognition in 2005 because it could not prove it had maintained a continuous community since the days Connecticut was settled by Europeans.
The BIA also proposes to eliminate a requirement that outsiders have identified the group as Indian since 1900, and to streamline the processes to apply for recognition and take land into trust.
Blumenthal said changing the rules is unfair.
“It would so demean and diminish the standard to make it almost meaningless,” he said.
Breach of Trust
Former Kent town attorney Jeffrey Sienkiewicz has been fighting against land claims brought by the Schaghticoke since the 1990s and continues to do so as a lawyer in private practice.
He said he’s concerned that Washburn has an activist bent that makes him deaf to concerns that are not voiced by Indians.
“If you ask me if he’s going to go forward with the changes, the answer to that is ‘yes,’” Sienkiewicz said.
The Schaghticoke are a coalition of the remnants of several New York and New England tribes that have a reservation in Kent and received federal recognition in 2004. But the tribe lost that designation in 2005.
That hampered the tribe's land claims, which consist of about a dozen parcels, including the site of the Kent School, an exclusive private preparatory school.
The Kent School’s 23 pages of highly critical public comment concluded that Washburn’s plans “depart from decades of case law and administrative precedent.”
But even with recognition, the tribes could not wrest control of land from current owners in the state. Tribal and government sources say Indian property claims could be settled during negotiations for a compact that would allow the tribes to set up gaming operations.
The Shaghticoke claims, which are pending in the Circuit Court for the 2nd District in New York, can move forward only if the tribe regains federal recognition.
The tribe has a 400-acre reservation in Kent. But Sienkiewicz says the land wasn’t given exclusively to the tribe by the state of Connecticut.
“It has always been ‘any Indian can live on the reservation,’ including those from other tribes,” Sienkiewicz said. “The state did not recognize them politically."
Sienkiewicz insists the conflict is bigger than the legal battle over land claims.
“It’s whether they are entitled to federal recognition,” he said.
Mullane of North Stonington said the town has hired the Seattle-based mega law firm of Perkins Coie to help it persuade the BIA to change course. The law firm argues that the BIA has no authority to change the qualifications that determine, in the federal government’s eyes, who is an Indian and who is not.
Of the Eastern Pequot, Mullane said, “they are not deserving [of federal recognition]; they have failed before.”
There are concerns about new casinos, Sienkiewicz said. But the biggest worry is that, if the Eastern Pequot are given recognition and the BIA takes land into trust for the tribe, large areas around Kent would become “tax free” and not subject to state or local regulations, he said.
The possibility that the Eastern Pequot or other tribes would set up a casino in the state also endangers the $885,000 North Stonington receives each year from a compact between the state and the Mashantucket Pequot and the Mohegan.
James Benny Jones Jr., an Eastern Pequot tribal elder and the tribe’s lawyer, said the multimillion-dollar revenue-sharing agreement is what fuels opposition to the BIA’s plans.
“It’s economically driven, there’s no doubt,” said Jones, who has fought for his tribe’s recognition since the 1970s, when he was a young paralegal.
The Mashantucket Pequot and the Mohegan did not return calls requesting comment. Nor did these tribes provide the BIA with any public comments on Washburn’s draft plan.
Their silence masks a fierce opposition to the plan, Jones said.
“It’s not in any business interest to encourage competition,” he said.
Jones also said that Connecticut’s gaming tribes, with their wealth and influence, are helping to drive political opposition to the proposed new regulations.
“They contribute handsomely to all the coffers of those who are opposed,” Jones said. “If the Mashantucket Pequot and the Mohegan wanted the other tribes to be recognized, we would be recognized.”
The Eastern Pequot and the Mashantucket Pequot were once a single tribe that fought English settlers, and lost. They were split up and assigned to the supervision of other Native Americans who were English allies, the Mohegan and Narragansett.
The Eastern Pequot eventually escaped from the Narragansett and returned to their traditional territory in what is now southeastern Connecticut, where they were given a reservation on Lantern Hill in North Stonington in 1683.
The tribe received federal recognition in 2002. But, under pressure from federal lawmakers and other gaming tribes, the BIA revoked that recognition in 2005.
“It was a breach of trust,” Jones said.
Mega-casinos in the state
The third tribe in Connecticut that could benefit from a change in recognition regulations is the Golden Hill Paugussett, who have a quarter-acre reservation in Fairfield County, the smallest Indian reservation in the United States. They say most of their land was taken from them by settlers and that they have claim on 80 acres in downtown Bridgeport.
That has prompted the involvement of the Stamford-based Business Council of Fairfield County, which also submitted public comments about Washburn’s proposal.
The council’s letter to the BIA said it is certain that the tribes plan to build casinos and press property claims resulting in “gridlock” and “economic harm and uncertainty.”
“We said, ‘Wait a minute, this has all been resolved,’” said Joseph McGee, vice president of the business council, referring to the BIA’s former decision that that the tribes do not merit federal acknowlegement.
McGee said he’s glad that Connecticut’s congressional delegation has been “very assertive in making our feelings known,” but he thinks the BIA is “moving very aggressively” to change the process.
“This is not about Indians," McGee said. "It’s about gaming.”
In his public comments, Malloy said acknowledgment of the Eastern Pequot, Schaghticoke and Paugussett would be “devastating to Connecticut.”
The governor said it would likely revive land claims that would cloud titles to properties owned by Connecticut residents. Malloy said those land claims “could be used as leverage to compel the approval of additional mega-casinos in the state.”
And it very well may.
The Connecticut tribes have not fought for recognition on their own. At one point or another, they have been backed by New York developer Donald Trump, developer David Rosow and Connecticut businessman J.D. DeMatteo.
Despite the flood of opposition from Connecticut, many of the public comments on Washburn’s plan are supportive – and even suggest further easing of rules -- especially those from tribes seeking recognition.
There was also a letter of support submitted by the Norwich branch of the NAACP.
“We believe that the draft regulations are a crucial step in the right direction to insure fair and just decisions and disallow political opposition to overturn positive acknowledgement decisions developed over decades with much sacrifice from the tribal communities,” the letter said.