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