McCaleb ruling holds promise for state tribes

TUESDAY, JUNE 25, 2002

Assistant Secretary Neal McCaleb's recognition of the Eastern Pequot Tribe of Connecticut has raised hope -- and concern -- that other groups will gain federal status even with holes in their tribal petitions.

Although his acting deputy quickly pointed out yesterday that each case is different, McCaleb has indeed set a precedent that will allow state recognition to play a larger role in the process. "What we also used to weigh the evidence," said Aurene Martin as she discussed the decision, "was the recognition of the tribe from historical times to the present."

"There were a couple of areas where there was evidence," she added, "but there wasn't a whole lot."

What helped the Eastern Pequot and the Paucatuck Eastern Pequot petitioners break a barrier that would otherwise disqualify them was three hundred years of history. In the late 1600s, Eastern Pequot ancestors were placed on a reservation where a scheme of laws and principles closely resembling the federal trust relationship developed.

The reservation was held for the benefit of the tribal members. The land was free of taxation and alienation. State regulations didn't apply. Indians were treated as wards.

And over the years, the relationship moved to what one might call self-determination. Connecticut laws recognize the tribes' inherent right to decide their membership, elect leaders, regulate tribal commerce and enter into "trust agreements" with the state.

But the setup doesn't impress the one critic arguably the most familiar with the law. Attorney General Richard Blumenthal said yesterday that the use of state recognition was unfair.

"We are concerned that its logic and precedent could provide support for other tribal petitions in Connecticut and around the country," he said.

Two other state-recognized tribes are on the BIA's waiting list and could be affected by the new precedent. One, the Schaghticoke Tribal Nation, is due for a preliminary decision in several months, work that was dependent on final action on the Eastern Pequot case.

"It's very encouraging to the Schaghticoke Tribal Nation in our fight for tribal recognition," Chief Richard Velky said in response to yesterday's news.

The Golden Hill Paugussett Tribe is also waiting for a final answer on its petition. After being refused three times, Michael Anderson, Gover's former deputy, agreed to have the BIA reconsider the case.

Just how the tribes and others might be impacted isn't known. The BIA didn't release the Eastern Pequot final determination yesterday, a 198-page document that would give clues for other groups.

But elsewhere in the country, state recognition and the history it may bring hasn't helped much. McCaleb last year turned down the Nipmuc Nation of Massachusetts, whose ancestors were placed on a reservation during Colonial times.

For the Mohegan Tribe, recognized during the early years of the Clinton administration, state status didn't lend much weight. The state in fact had terminated relationship with the tribe in the late 19th century but later restored it.

Additionally, state recognition is subject to a wide variety of standards and interpretations. Tribal petitioners in Virginia, for instance, have to petition while groups in other states aren't required to do much.

Whatever the impact, the Pequot ruling vindicated statements made by Gover -- and recently echoed by McCaleb -- about the daunting task many petitioning groups face when seeking federal status. Both cited the need for history to play a role in the decision-making process.

"I felt very strongly that given that there was a deliberate and coordinated assault on tribalism carried out by the United States," said Gover as he discussed his actions, "that we weren't going to demand overwhelming proof of tribalism because it just wasn't going to be there."

Today on Indianz.Com:
McCaleb makes recognition history (6/25)