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BIA admits mistake in handling of recognition case
Thursday, December 9, 2004

Just four months after an internal investigation cleared top officials of wrongdoing for the recognition of a Connecticut tribe, the Bureau of Indian Affairs disclosed on Wednesday that it made an error in the case.

In a filing, an Interior Department attorney acknowledged that the intermarriage rate among members of the Schaghticoke Tribal Nation was improperly calculated. The BIA counted the number of married individuals instead of the percentage of married couples, thus artificially inflating the rate.

The mistake is potentially significant because the agency used the intermarriage rate to justify its decision to recognize the tribe. The high rate was proof that the Schaghticokes existed as a distinct community from the 19th century until the present, the BIA said in its final determination this past January.

But in a proposed finding from December 2002, the BIA rejected the tribe's case, saying there wasn't enough evidence to demonstrate community existence during the time period in question. Critics said the change in position means the tribe isn't qualified for federal status.

"This dynamite concession means that recognition must be denied," Connecticut attorney general Richard Blumenthal said yesterday. "It is an apparently unprecedented, unique admission of error."

The revelation comes just months after the Interior Department's Inspector General cleared a former Bush administration official of wrongdoing in the case. Blumenthal and others from Connecticut had accused Aurene Martin, acting assistant secretary of the BIA at the time, of bending the law.

Martin, who resigned to work for a Washington, D.C., law firm, reversed the negative proposed finding after receiving a "briefing paper" that outlined possible options for a decision. The briefing paper acknowledged that the tribe provided "little or no direct" evidence to meet the criterion for continuous community existence from historical times until the present.

Specifically, there were gaps in the record between 1820 and 1840 and between 1892 and 1936. The briefing paper said the intermarriage rate during this time "falls just short of the 50 percent necessary" under federal regulations.

But when Martin ended up recognizing the tribe, the decision she signed cited a "a detailed, decade-by-decade, analysis" of marriage rates. According to the document, which was published in the Federal Register, the tribe met the 50 percent threshold from 1801 to 1870.

Intermarriage rates among tribal members or with other documented Indians aren't the only evidence the BIA can use to determine community existence or, in some cases, political influence. A rate below 50 percent doesn't mean the tribe is disqualified for federal status.

But high rates do bolster a tribe's case in the eyes of the researchers who examine the information. In the past, the Eastern Pequot Tribal Nation of Connecticut and the Cowlitz Tribe of Washington have used intermarriage among tribal members and other Indians to their benefit.

Whether the BIA's mistake will play a role is in the air because the case is pending before the Interior Board of Indian Appeals. The board received the filing about the marriage rate from Barbara Coen, a solicitor who handles Indian issues.

Richard Velky, chief of the Schaghticoke Tribal Nation, doesn't think it will. "We are confident the final determination we received will be upheld upon further analysis," he said in a statement.

Publicly, Martin said her decision was based on the state of Connecticut's continuous relationship with the Schaghticokes. She said the tribe's oversight resembled the federal-tribal relationship.

"How do you treat a petition from a state that has basically replicated the federal recognition at the state level, a recognition which, at the federal level, is at its core a recognition of another sovereign entity?" she said at an Indian law conference in May of this year.

Martin's decision in favor of the Schaghticokes was only the second time in BIA history that a negative proposed finding was reversed into a positive final determination. The Mohegan Tribe of Connecticut was able to in the mid-1990s.

Relevant Documents:
Inspector General Letter | Schaghticoke Briefing Paper

Only on Indianz.Com:
Federal Recognition Database (July 2004)

Relevant Links:
Schaghticoke Tribal Nation - http://www.schaghticoke.com
Interior Board of Indian Appeals Decisions - http://www.ibiadecisions.com

Related Stories:
Group claims tribe's recognition will hurt community (09/30)
State officials want 'fix' to recognition process (09/09)
Probe finds no wrongdoing in BIA recognition case (09/01)
Inspector General investigation called 'bunch of b.s.' (09/01)
Schaghticoke recognition to go before review board (06/04)
Critics take BIA to task over federal recognition (05/06)
Recognition briefing paper at heart of latest feud (05/05)
Martin attacked for federal recognition decision (05/04)
Blumenthal criticized for 'all-out war' on tribes (04/30)
Report: Martin bent rules to recognize Conn. tribe (3/12)
Schaghticoke Tribal Nation: 'Today is our day' (1/30)
Recognition decision expected for Schaghticoke Tribe (1/26)
BIA asked to reconsider tribe's membership roll (12/05)
Conn. AG wants to break court agreement with BIA (11/12)
Tribe seeking recognition purges membership rolls (10/13)
State recognized tribe allowed to sue in Conn. (07/22)
Conn. court upholds jurisdiction over tribe (05/13)
Schaghticoke chief disputes state jurisdiction (01/17)
McCaleb 'throwing away a history of people' (12/06)
Schaghticoke Tribe denied recognition (12/5)
Lawmakers attempt to thwart recognition (12/5)
Conn. tribe awaits recognition ruling (12/4)
Recognition decision expected this week (12/2)
McCaleb plans to issue recognition ruling (11/26)
McCaleb ruling holds promise for state tribes (06/25)
McCaleb makes recognition history (6/25)
BIA project consumes recognition resources (06/12)
BIA recognition staff fails pressure test (05/31)
State challenges Schaghticoke Tribe (04/19)
Tribe's recognition delayed (02/20)
Conn. tribe waiting on recognition (01/23)

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