Updated Friday at 3:45 p.m.
Washington — An Eastern Pequot leader said Friday that his tribe plans to move forward with its attempt to win federal recognition, despite a provision in a new Bureau of Indian Affairs proposal aimed blocking that effort in Connecticut.
“This was clearly a slap at the Connecticut tribes,” said James Benny Jones Jr., an Eastern Pequot tribal elder and the tribe’s lawyer.
The BIA on Thursday released a long-awaited draft that aims to reform a 35-year-old process of federal recognition of Indian tribes.
The proposed regulations would make it easier for tribes across the country to win recognition.
But, in what Jones said was political pressure from Connecticut officials, the BIA changed a previous draft of the proposal to include language that says, in order to renew their claims, tribes whose bids for federal recognition have been rejected must receive approval from those who previously opposed their recognition.
That would make it very difficult for the Eastern Pequot of North Stonington, the Golden Hill Paugussett of Colchester and Trumbull, and the Schaghticoke Tribal Nation of Kent, to make another application. Their bids for federal recognition were rejected and the entire Connecticut political establishment has, for years, opposed the tribes’ recognition and still does – strongly.
The BIA’s new proposed rules say “an entity that previously petitioned and was denied federal acknowledgment” including a reconstituted tribe or splinter group, can reapply only if “any third parties that participated as a party in an administrative reconsideration or federal court appeal concerning the petitioner has consented in writing to the re-petitioning” and the tribe meets other requirements in the proposed regulations.
“It’s clearly an indication of influence peddling,” Jones said of the restrictive language.
Federal acknowledgement establishes the U.S. government as the trustee for tribal lands and resources and makes tribes eligible for a slew of government services – and gives them autonomy from the state government and the right to establish gambling casinos.
Before the Interior Board of Indian Appeals overturned the decisions, the Eastern Pequot and Schaghticoke were given federal recognition, a status that was challenged by state officials. The Interior Board of Indian Appeals stripped the tribes of their newly won federal status.
The BIA’s proposed new rules eliminate the board of Indian appeals process. That – and the fact the Eastern Pequot and Schanticoke were once recognized — will help the tribes outmaneuver any attempt to block them in the new regulations, Jones said.
“I always have an alternative strategy,” he said.
A “discussion draft” released by BIA Assistant Secretary Kevin Washburn last year would have given the three Connecticut tribes a good chance at recognition.
That touched off an intense lobbying campaign by state officials and the state’s congressional delegation who argued giving the tribes recognition would wreak havoc in the state by renewing land claims, opening new casinos and shielding new tribal lands from state and local taxation.
Gov. Dannel Malloy even sent a letter to President Obama in February decrying some of the changes the BIA had been 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.”
On Thursday, Malloy, Attorney General George Jepsen and the entire Connecticut congressional delegation on Thursday issued a cautiously optimistic statement.
“We appreciate the Obama administration’s willingness to engage in a discussion of the concerns we have raised over the past nine months, and its latest revisions are a step in the right direction,” the statement said. “However, we believe additional changes and clarifications are necessary to ensure that Connecticut’s interests are protected, and we will continue to work for their inclusion.”
Sen. Richard Blumenthal, D-Conn., who both as Connecticut’s attorney general and the state’s senior senator fought federal recognition of the Eastern Pequot, Schaghticoke, and Paugussett, said he was pleased the regulations were amended, but he has remaining concerns.
“I am pleased that the administration has been responsive to our concerns about giving groups a second chance of recognition when they failed the criteria the first time,” Blumenthal said.
But Blumenthal and other state officials are concerned the language of the proposal leaves vague the definition of third party consent needed for the Connecticut tribes to petition the BIA.
They hope to win further concessions from the BIA during the two-month public comment period which will end Aug. 1.
Blumenthal said he’d like the final regulations to “indicate the state has the power to, in effect, block an unwarranted second chance.”
He also said he would lobby the BIA to toughen other proposed criteria.
Connecticut’s tribes are likely to lobby the BIA, too, during the summer.
Besides land claims that could take hundreds of acres out of state and local tax bases, federal acknowledgement that leads to new gaming in the state would likely 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.
Washburn, a member of Oklahoma’s Chicasaw Nation, has sought to reform what he calls a “broken” recognition process since he became head of the BIA last year.
“One of my first assignments at the department was to search for ways to improve the federal recognition process and address long standing criticisms of those regulations,” he said. “This initiative is the product of substantial tribal consultation and public comment and we are grateful for the broad public interest in this reform effort and the helpful guidance we have received from tribes and the public.”
The proposed changes Washburn announced Thursday incorporate a key feature floated in last year’s draft plan that required a tribe to show “community and political influence/authority from 1934 to the present,” rather than from as early as 1789 under existing rules.
Another change would also eliminate the need for a petitioner to demonstrate that third parties identify them as a tribe from 1900 to the present.
Those changes could help the Schaghticoke Indian Tribe, a group of Indians who split from the Schaghticoke Tribal Nation and have never been denied tribal recognition, a chance to apply for that status.
Connecticut officials are worried other new tribes may crop up in the state, too.