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Probe finds no wrongdoing in BIA recognition case
Wednesday, September 1, 2004

An internal investigation has cleared outgoing Bureau of Indian Affairs deputy Aurene Martin of any wrongdoing in a highly politicized recognition case.

Aurene Martin, who resigns as principal deputy assistant secretary next week, was the subject of intense criticism for her decision to acknowledge the Schaghticoke Tribal Nation (STN). Officials from Connecticut accused her of bending the rules in favor of a group backed by wealthy investors seeking a casino.

But Earl E. Devaney, the Department of Interior's Inspector General, found no evidence that Martin or other BIA staff broke the law or were unduly influenced by the gaming industry. In a three-page letter summarizing the results of his investigation, he said there was no "smoking gun" as had been claimed by the Connecticut critics.

"Although the STN recognition decision was highly controversial, we found that [BIA officials] conducted themselves in keeping with the requirements of the administrative process, their decision-making process was made transparent by the administrative record, and those parties aggrieved by the decision have sought relief in the appropriate administrative forum – each, as it should be," Devaney told Sen. Chris Dodd (D-Connecticut), who requested the probe.

Devaney's letter was welcomed by Richard Velky, chief of the Schaghticoke tribe. "We would hope that the strength and clarity of this decision, which rejected all implications of bias or improper influence, will temper those who have attempted to use politics and the media to undermine this comprehensive and fair determination," he said in a statement. The tribe waited for more than 20 years for an answer on its recognition petition.

But the closing of the matter only inspired more outrage from Connecticut, home to two tribal casinos and possibly two more. Gov. M. Jodi Rell took issue with Devaney's characterization of the rules governing federal recognition as "permissive and inherently flexible."

"This unsupportable decision begs more than ever for an immediate investigation into the entire recognition process at the BIA, as well as immediate legislative initiatives to repair the seriously flawed existing tribal recognition process," she said in a letter to the state's Congressional delegation.

At issue in the dispute is a January 12 memo prepared for Martin, who at the time was acting assistant secretary of the BIA. In it, the Office of Federal Acknowledgment laid out various options for possible recognition of the Schaghticoke Tribe, which had been denied federal status in a preliminary determination.

The so-called "briefing paper" pointed out that the tribe lacked evidence to prove its status for certain periods of time. But Martin recognized the tribe anyway, using its continuous relationship with Connecticut going back to the 1600s to patch up holes in the historical record.

"The Schaghticoke Tribal Nation has demonstrated continuous existence as an Indian tribe," the BIA said in a statement.

Martin went on to defend the decision before Indian lawyers and legal scholars. At a conference in Albuquerque, New Mexico, she noted that the state acted as an overseer of the tribe and took on some of the duties of the federal government.

"Why can't this relationship itself be proof of a tribe's political existence over that time period?" she asked members of the Federal Bar Association.

Blumenthal has since cited Martin's memo and public remarks in his appeal of the Schaghticoke 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 said in a May filing.

Martin, a former Senate aide, eventually assumed greater control over federal recognition matters even after a new assistant secretary, came on board in February, just days after the Schaghticoke decision was announced. Dave Anderson recused himself from all recognition, gaming and gaming-related land acquisitions, citing his past involvement in the lucrative gaming industry.

In hopes of tapping that market, Frederick A. DeLuca, founder of the Subway restaurant chain, has poured $12 million into the Schaghticoke tribe. He bankrolled the tribe's petition and is now pursuing a potential casino in southern Connecticut. The tribe's reservation is in northern Connecticut on the border with New York but tribal leaders don't plan any development there.

Despite the high stakes involved, Devaney said there was "no independent evidence" that showed DeLuca's lobbying group, Eastlander Group, contacted anyone at the BIA regarding the tribe. Devaney also said there was no evidence that an unnamed BIA employee had a personal bias against Blumenthal.

Allegations of casino influence at the BIA reach back to the Clinton administration. Upset over the recognition of another Connecticut tribe, state officials accused former assistant secretary Kevin Gover of making decisions that would help his career as a lobbyist.

Yet even detractors admit they have nothing to connect the BIA's decisions to wealthy backers. "Do we have direct evidence that [lobbyists] influenced the process? No," said Jeff Benedict, head of the Connecticut Alliance Against Casino Expansion, at a House hearing in May.

Gover, who joined a Washington, D.C., law and lobbying firm after leaving the agency but is now a law professor at Arizona State University, said critics give too much credit to lobbyists. "Were tribes lobbying the White House to get a certain decision out of me?" he wondered in an earlier interview. "If they tried, it didn't work."

Martin's last day in office is September 10. Mike Olsen, a non-Indian attorney, will take over her position and has already been handling some of her former duties because she plans to enter a career in the private sector.

Relevant Documents:
Devaney Letter | Gov. Rell Letter | Schaghticoke Briefing Paper

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