October 1, 2014

Attorney General George Jepsen yesterday filed official comments with the federal Bureau of Indian Affairs (BIA) on behalf of the state in opposition to proposed rules issued that would significantly weaken the substantive requirements for federal tribal recognition. Governor Dannel P. Malloy said that he supports the Attorney General's comments and that, if ultimately enacted, the BIA's proposed rules would have a unique impact in Connecticut.

"The proposed rules would have a grave and unfair impact on Connecticut and should not be adopted in their current form," said Governor Malloy. "Such a change would likely result in federal acknowledgement for groups that have made land claims to large areas of settled land here in Connecticut, and who have already been denied recognition after a long, intense, and fact-based federal process."

"The proposed rules represent a dramatic departure from the standards and process governing acknowledgment decisions for nearly 40 years," said Attorney General Jepsen.  "If adopted as proposed, petitioners could gain recognition in circumstances completely at odds with fundamental principles of tribal acknowledgement. These proposals – which could give previously denied petitioners a second bite at the apple under greatly weakened criteria – are unjustified and should be rejected."

The federal tribal recognition rules currently in place require a tribe to prove its continuous community and political authority since first contact with European settlers. Under the changes proposed by the BIA in May, criteria would be weakened to require merely a demonstration that a state has maintained a state reservation since 1934. The existence of a state reservation, in Connecticut's experience, does not reflect the kind of political organization and history that federal recognition status requires.

"Rather than improving transparency, predictability and finality, the proposed changes may undo settled decisions on which the state and others had expended significant resources and on which they have relied," the Attorney General said. "The continuous existence as a distinct community and the continuous exercise of political influence or authority within the group are central to the decision to acknowledge a tribe and to place them in a government-to-government relationship with the federal government. The proposed rules represent an unprecedented break from these established understandings of acknowledgement principles."

The draft would allow a previously denied petitioner to re-petition if it can demonstrate that the changed criteria warrant a reversal of prior denial and if parties to its previous denied petition consent to the group's re-petitioning.  Such a consent requirement would likely be subject to litigation, the outcome of which is uncertain. That uncertainty, coupled with the change to core acknowledgement criteria, could lead to the reversal of prior decisions denying recognition to the Eastern Pequot, Schaghticoke and possibly the Golden Hill Paugussett petitioners – contradicting findings in previous recognition proceedings that determined that the maintenance of state reservations itself offered no evidence of community or political authority.

"There is no justification to permit the petitioners, and to require the interested parties to expend their resources, to litigate acknowledgement anew," Attorney General Jepsen said. "The previously denied petitioners had a full and fair opportunity to prove their tribal existence. They failed. The proposed rule allowing re-petitioning should be eliminated so that the state and its most affected communities can be spared years of additional and unnecessary uncertainty."

The Attorney General said that provisions in the proposed rules dealing with splinter groups or factions seeking to be acknowledged should be clarified and made consistent to ensure that their purpose – to avoid the factionalization of tribes and preclude splinter groups from gaining acknowledgement when the group with which they were previously associated has been denied – is achieved.

Additionally, the proposed regulations would eliminate appeal review by the Interior Board of Indian Appeals and allow only petitioners to seek a hearing before an Office of Hearings and Appeals judge after a proposed negative finding.  Third parties, including the state and municipalities, would not be allowed to seek such review following a proposed positive finding, a move Attorney General Jepsen called "patently unfair."

The BIA’s comment period on the proposed regulations closed yesterday, September 30.

Assistant Attorney General Mark Kohler, head of the Special Litigation department, and Special Counsel Robert Clark are assisting the Attorney General with this matter.

  

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