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The Rise of Tribes and the Fall of Federal Indian Law
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Martin attacked for federal recognition decision
Tuesday, May 4, 2004

The state of Connecticut accused the Bureau of Indian Affairs on Monday of a "complete about-face" for its controversial decision to recognize the Schaghticoke Tribal Nation.

State attorney general Richard Blumenthal was joined by a host of municipal leaders to announce his challenge to the the BIA. "This appeal is about a federal agency skirting and subverting the truth - and brazenly ridiculing the rule of law," he said at a press conference.

A 197-page filing being lodged with the Department of Interior's Board of Indian Appeals outlines a series of complaints against the decision. The state alleges that principal deputy assistant secretary Aurene Martin, in a January 29 final determination that reversed a negative proposed finding, manipulated gaps in evidence to show that the tribe has operated as a political and cultural unit since historical times.

"In a complete about-face that simply cannot be justified on the basis of the record or the regulations, the final determination acknowledged the [Schaghticokes] as a federal Indian tribe," the state writes.

Martin's use of the state's 300-plus year relationship with the tribe as part of her analysis draws significant criticism from Blumenthal. The state claims the relationship has no bearing on the tribe's case.

But Martin, in her decision, pointed out that the tribe, like others in the state, has its own state-recognized reservation. She also noted that, over the years, the state has legislated in the area of Indian affairs, including appointing overseers for the state's tribes, extending voting rights to tribal members and attempting to terminate the state-tribal relationship.

At an Indian law conference last month, Martin cited these factors in a public defense of her decision. While acknowledging that state recognition alone might not carry much weight, she said the "active" and "ongoing" relationship between the Schaghticokes and Connecticut deserved special attention.

"Why can't this relationship itself be proof of a tribe's political existence over that time period?" she said at the Federal Bar Association's Indian law conference in Albuquerque, New Mexico.

"What about that grant of the right to vote to tribal members from the state, a basic right of citizenship?" she added. "Prior to the granting of right, [tribal members] must have belonged to some other political entity. They must have been citizens of something."

"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 concluded.

In the filing, Blumenthal refers to Martin's statements at the conference and said she ignored evidence to the contrary that was submitted prior to the January 29 decision. "If this is the true basis for her use of state recognition that the state recognition was based on the same process as federal recognition resulting in a government-to-government relationship it reflects a gross distortion and misunderstanding of the evidence about the state's relationship," he writes.

Martin is the second-in-command at the BIA but is in charge of federal recognition because assistant secretary Dave Anderson, who didn't join the Bush administration until the week following the Schaghticoke decision, has recused himself from any recognition matters. A BIA spokesperson said he didn't want his previous work in Indian gaming to cloud the issue.

The state's appeal will tie up the tribe's status for at least a year. Depending on how the situation plays out, Blumenthal could seek review by the courts, extending the battle even longer.

The Schaghticoke Tribal Nation applied for recognition in 1981 but is split by rival groups. The tribe has several land claims in the courts that depend on resolution of the tribe's federal status.

Schaghticoke Chief Richard Velky issued a statement yesterday blasting the state's appeal. "The Attorney General's appeal is nothing more than his latest media event -- just another frivolous lawsuit at the expense of Connecticut taxpayers," he said.

The tribe's recognition petition was financed by Frederick A. DeLuca, the founder of the Subway sandwich chain, who hopes to help the tribe seek land for a casino, possibly in Bridgeport, where such development is welcomed.

The tribe's reservation, near the New York border, is considered unsuitable for commercial use. The leader of Kent, the town near the reservation, has joined Blumenthal's appeal.

Relevant Documents:
State Appeal Documents | Federal Register Notice

Relevant Links:
Schaghticoke Tribal Nation - http://www.schaghticoke.com

Related Stories:
BIA critical of main components of recognition bill (04/22)
BIA official warns of Congressional maneuvering (04/16)
Report: Martin bent rules to recognize Conn. tribe (3/12)
Challenges await Anderson on federal recognition (02/26)
Schaghticoke Tribal Nation: 'Today is our day' (1/30)
Lack of evidence addressed in recognition bill (02/19)
Sweeping recognition reform bill offered (02/07)
At BIA, no recognition of new tribes (2/5)
BIA recognition still hard to prove for some (01/22)
McCaleb 'throwing away a history of people' (12/06)
McCaleb delivers aggressive recognition plan (10/03)
BIA role in recognition decisions under review (06/13)
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)

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