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New BIA rules could produce havoc

Published May 25. 2014 4:00AM

Proposed changes easing the requirements for Indian tribes to gain federal recognition would endanger the integrity of the process, while potentially generating many problems and plenty of litigation, particularly here in Connecticut.

While some tribes have faced frustration and failure in trying to gain federal acknowledgment and the benefits it provides, that does not justify this move to water down the rules.

The latest proposed rules appear to offer greater protections for Connecticut and local towns than an earlier draft, but with clever lawyering tribes previously denied federal recognition may make a case for a second try.

The new rules could also pave the way for individuals of questionable Native American heritage to gain the same recognition and benefits that other tribes only obtained by maintaining and documenting long-standing tribal identity. It would cheapen what they achieved.

A major change would require a petitioning tribe to demonstrate to the Bureau of Indian Affairs that it has existed as a political entity and community since at least 1934. Current rules require proof of continuity back to colonial times. Among the problems that causes is that during the Great Depression and moving forward, some reservations became a refuge for families, not all of them Native Americans, while in other cases Indians from various historical tribes mixed on reservations. To look back to loose coalitions of people in the mid-1930s as proof of tribal authenticity is a dubious test.

There is no denying the mistreatment of Native Americans, the resulting poverty, the breaking of treaties and seizure of reservation lands, all contributed to the difficulty historic tribes faced in maintaining a cohesive identity. However, the BIA does not address or rectify these injustices by creating a specious recognition process.

Unclear is whether the new rules would allow the Eastern Pequots and other tribes previously denied federal recognition to reapply and gain approval. A reading of the changes suggests that other parties to the original application - in this case, the state and local towns that opposed it - would have to consent to any reapplication. But it is questionable whether this language is sufficiently ironclad to prevent the Easterns and other tribes in the same situation to find a way around it. If the rules are adopted, what could follow is plenty of work for lawyers as they argue what the provisions allow and try to turn them to their client's advantage.

Expect the Schaghticokes of Kent and Golden Hill Paugussetts of Colchester and Trumbuill, who like the Easterns are state recognized, to make a play for federal recognition.

Meanwhile, other tribes that have never sought federal recognition could do so, such as the Poquonock Pequot Tribe in Ledyard and the Southern Pequot Tribe of Waterford.

Federal recognition could lead to new land claims by tribes. It makes tribes eligible for federal assistance. And federally recognized tribes can develop casinos on their reservations.

It is hard to envision more tribal casinos in an already saturated market. The state compact that allows the Mashantucket Pequots and Mohegans to offer full gambling opportunities, including slots, would need to be reopened to allow more such casinos. Would the Mashantuckets and Mohegans, whose respective Foxwoods and Mohegan Sun casinos have seen a big downturn in business, agree to reopen the compact?

The best option would be for the BIA to stick with its existing recognition rules. Short of that, state and local leaders need to make sure that their interests are protected in any final regulations that are approved.

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