CT politicians, Indian tribes escalate fight over recognition rule

Washington – The Bureau of Indian Affairs has done Gov. Dannel Malloy and the rest of Connecticut’s government officials a huge favor by postponing the implementation of a regulation that could bring more tribal gaming to the state.

But the forces opposed to federal recognition of three additional Connecticut tribes are far from winning their campaign. The tribes are pushing back against state efforts to deny their chance at federal recognition — a measure that would open the door to federal aid, give them the right to press land claims,  and to establish casinos.

After receiving a flurry of appeals from the Malloy administration, the state’s congressional delegation and mayors and selectmen from a number of Connecticut towns, the BIA has agreed to extend for 60 days a public comment period on the tribal recognition proposal. The old deadline was Aug. 1, the new one is Sept. 30. State leaders need the time to fully press their case to the BIA .

Meanwhile, one tribe has threatened to sue the BIA if it shuts them out of a proposed new regulation that would ease the federal recognition process for many of the nation’s tribes. Others are appealing to the BIA on the basis of history and what they say is justice.

“The BIA failed to consider the long, oppressive history of the state of Connecticut,” wrote Kathleen Sebastian Dring, an elder of the Eastern Pequot Tribal Nation of North Stonington, in her comments to the agency.

This was the second time the state has been able to influence the BIA. In May, the agency gave state politicians a big win with a modification to its recognition proposal. The decision infuriated the three Connecticut tribes trying to win recognition — the Eastern Pequot, the Golden Hill Paugussett of Colchester and Trumbull, and the Schaghticoke Tribal Nation of Kent.

The modification would allow those who have previously fought against their recognition to veto any new application for recognition.

“Third-party consent requiring for re-petitioning appears to be in response to concerns Connecticut raised about the discussion draft,” Connecticut Attorney General George Jepsen wrote in a memo about the proposed regulation, which will be finalized after the public comment period ends.

Yet the Malloy administration and others opposed to federal recognition of these tribes are concerned about lawsuits against the BIA, fearing that the “veto provision” is unconstitutional. Jepsen said likely lawsuits over the provision would mean “Connecticut may not be able to rely on the proposed rule to protect its interests.”

“Under the present regulations, a previously denied petitioner may not repetition. That prohibition should remain the same,” Jepsen wrote.

What rattled the Malloy administration were the public comments submitted by Chief Richard Velky of the Schaghticoke Tribal Nation, who told the BIA that giving third parties the right to object to new petitions for federal acknowledgement “does not, I believe, comport with the due process and equal protection principles of our Constitution.”

“Nor does the U.S. Constitution provide that a state and its political subdivisions may exercise an absolute veto over the exercise of constitutional authority vested exclusively in the United States government,” Velky wrote.

Dring told the BIA that “the 3^rd party veto undermines the BIA’s attempt to create an equitable and objective process for the tribes” and was “imposed by the BIA after political pressure from Connecticut.”

“As citizens [Eastern Pequot tribal members] are entitled to the equal protection of laws in accordance to the U.S. Constitution,” Dring said.

While the proposed regulations would ban splinter groups from applying for recognition, the Malloy administration is concerned the wording of that ban is “somewhat ambiguous.”

It fears the Schagticoke Indian Tribe, a group of Indians that rejected the leadership of the Schagticoke Indian Nation, might be able to apply for federal acknowledgement – and since they were never denied recognition, no veto provision would apply.

BIA Assistant Secretary for Indian Affairs Kevin Washburn, a member of Oklahoma’s Chicasaw Nation, has sought to reform what he calls a “broken” recognition process since he took the job last year.

In his letter to the BIA, Velky reminded Washburn that he had met him when his daughter, Melissa Velky, graduated from the University of Mexico pre law class in 2008. Washburn was a professor at the school.

State denied a hearing

The modern-day struggle between the tribes and the state of Connecticut has gone on for years and this fight is just the latest chapter.

Both the Schanticoke and the Eastern Pequot had briefly won recognition from the BIA, but it was taken away, under pressure from federal lawmakers and other gaming tribes.

The Eastern Pequot received federal recognition in 2002. The Schaghticoke received federal recognition in 2004. But the BIA revoked both their recognition in 2005.

The proposed changes to the BIA’s process would remove some of the restrictions that caused the tribes to lose their recognition.

Among them is Washburn’s proposal that tribes show “community and political influence/authority from 1934 to the present,” rather than from as early as 1789 under existing rules.

That change is opposed by Malloy and the rest of the state’s politicians.

Besides taking large areas of Connecticut out of the reach of local and state government regulations and tax collections, federal recognition would reopen old land claims, including one involving the land now owned by the Kent School; and threaten state and local government revenues from the two tribes that are federally recognized and run huge gaming operations in 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.

While Jepsen has written a memo detailing his opposition to the BIA’s plans, opponents to the proposed regulations have not formally submitted public comments — only a series of letters asking to keep the public comment period open for a while.

While the BIA agreed to that, it denied Malloy’s request to hold a hearing in Connecticut on the proposed changes. Instead, the BIA will held a hearing today in Mashpee, Mass., and teleconferences on Aug. 18 and Aug. 20 for tribal members and Sept. 3 and Sept. 5 for others.

Malloy said he is disappointed.

“Given the unique and profound effect this proposed rule would have on our state, Connecticut residents deserve an opportunity to express their views in person with BIA officials, and not just as part of a 50-state teleconference,” the governor said.