McCaleb 'throwing away a history of people'

FRIDAY, DECEMBER 6, 2002

In what is likely to be outgoing Assistant Secretary Neal McCaleb's last foray into the controversial subject, the Bush administration on Thursday denied federal status to one of the oldest historically recognized tribes in the United States.

After more than 20 years of waiting, the the Schaghticoke Tribal Nation of Connecticut was informed that it failed to meet two out of seven mandatory recognition criteria. The Bureau of Indian Affairs in a statement said the tribe did not demonstrate continuous existence as a distinct community and failed to show political authority over its members for "certain periods of time."

The decision, which is not final, is a major blow to a tribe that has been recognized by the state of Connecticut since colonial times. But unlike a recent ruling where state standing played a role, McCaleb said this "relationship does not substitute for the extended periods of time where there was little or no direct, specific, evidence provided in regard to political authority or influence."

Schaghticoke Chief Richard Velky, upon hearing the news, said the tribe was "disappointed." "Obviously, we would have preferred a positive," he said from a tribal office in Derby.

The BIA did not release copies of the preliminary finding to the tribe or the public. Velky, however, questioned the BIA's failure to rely on the tribe's government-to-government relationship with the state.

"We should stand on our own but I don't see how the state evidence couldn't factor into this decision," he remarked. "The state has been the tribe's overseer since 1736 and to say that you are not going to accept documentation to help factor into the decision is throwing away a history of people."

In June, McCaleb issued a final determination to acknowledge the historic Eastern Pequot Tribe, also of Connecticut. At the time, BIA officials said the decision was significant because state evidence was used to fill in the gaps in the record.

"It is precedent setting because we have not had a situation where we have had to determine that state recognition played into the existence of an historical tribe," deputy assistant secretary Aurene Martin said.

McCaleb, however, drew a distinction between the two cases. According to the BIA, the state of Connecticut lapsed in its oversight of the Schaghticoke and "declared affirmatively that there were no leaders recognized by the group."

"In these respects, the state's relationship with the Schaghticoke petitioner differed from its relationship with the historical Eastern Pequot," the BIA stated.

Yesterday's announcement was made because the BIA was under court order by a federal judge in Connecticut to issue a preliminary decision. It now sets into motion a six-month comment period for the parties to the litigation. There are three lawsuits that have been on hold pending a decision on the tribe's status.

Once the decision is published in the Federal Register, which won't occur for several more days, the public will also have six months to comment. According to the court order, a final ruling will be made by September 2003.

"I don't think we'll have any problems filling in the gaps," said Velky. "We expect to take this negative and turn it into a positive."

A negative proposed finding has been overturned twice in BIA history, both times with New England tribes: the Gay Head Wampanoag Tribe of Massachusetts and the Mohegan Tribe of Connecticut. Also, the BIA has never overturned a positive preliminary finding.

There are four routes a tribe can take to obtain federal status. The most time-consuming is through the BIA, which relies on a set of regulations to arrive at a decision.

Congress can pass legislation to recognize a tribe and must do so when a tribe has been terminated. The courts, through judicial decisions, and the president, through executive orders, can also extend federal status, although this is extremely rare.

Since the BIA instituted its regulations in 1978, the staff of the Branch of Acknowledgment and Research (BAR) has recognized 16 tribes and turned down just as many. Under a proposed reorganization McCaleb announced on Wednesday, the BAR will be elevated to a separate office under Aurene Martin.

The Schaghticoke Tribal Nation resides on a 400-acre reservation in western Connecticut near the New York border. It has approximately 300 members.

Relevant Documents:
Federal Register Notice: Proposed Finding (BIA 12/5) | McCaleb Proposes to Decline Schaghticoke Acknowledgment (BIA 12/5)

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