New tribal rules defy logic, fairness
On the one hand, it appears unnecessary and unfair to tribes that have earned federal recognition to dramatically now remake the recognition rules, giving other alleged tribes an easier pathway to the special benefits that come with recognition. Diluted requirements also increase the odds of an undeserving group gaining tribal status.
On the other hand, having made changes to the recognition process to make it easier, it seems arbitrary and unfair to prohibit tribes that failed under the old criteria any opportunity to reapply. In fact, it invites a legal challenge.
So in essence, the new recognition rules announced by the U.S. Department of the Interior provide the worst of both worlds — a watered-down process that is biased.
Yet state officials are celebrating the overhauled rules, and with some good reason, because they will likely prevent more tribes from gaining recognition in Connecticut. More tribes would lead to some nasty property fights as the tribes sought to reclaim ancestral territory. It also could have meant more casinos in the state at a time when the existing two tribal casinos — Foxwoods Resort Casino operated by the Mashantucket Pequot tribe and Mohegan Sun operated by the Mohegan tribe — are struggling due to increasing out-of-state competition.
Dealing with newly recognized tribes over casino operations could have placed in danger the compact the state has with the Pequots and Mohegans that last year directed nearly $300 million in slot winnings into state coffers.
These concerns generated a united front against easier recognition rules, with Gov. Dannel P. Malloy giving voice to the state’s opposition and Sens. Richard Blumenthal and Chris Murphy lobbying the Obama administration in Washington.
From our perspective, the rules should not have changed. They should still require a tribe to prove they were functioning when the U.S. Constitution came into force in 1789 and continued as a tribe thereafter in some form. The Bureau of Indian Affairs wanted to move the date to 1934, a change inviting abuse of the process.
In its final updated rules announced last week, it moved the date to 1900, which is better but still a questionable criterion. Also eliminated was a provision to give great weight to state recognition — never intended to be a step toward federal recognition. Under the moderated change, state recognition will now be just another factor the BIA can consider.
But the biggest victory cited by state leaders is the one that raises the most serious fairness question. Tribes denied federal recognition under the older, more stringent process will be prohibited from reapplying under the new rules. That means the Eastern Pequots of Stonington, Golden Hill Paugussetts of Colchester and Trumbull and the Schaghticottes of Kent, denied recognition about a decade ago, cannot try again.
In trying to explain to the Associated Press why the old rules needed changing, yet tribes denied under those old rules don’t deserve reconsideration, Kevin Washburn, assistant secretary at the Department of Interior, offered a rather weak rationale.
“It would be unfair to allow people to come in and re-petition when there are people in line who haven’t had their first chance to make their case,” he said.
That might explain moving them to the back of the line, but not banning reapplication entirely.
The original applications filed by the Easterns, Golden Hill Paugussetts and Schaghticottes raised serious questions about their status, leading to federal denial. The rules should not have been changed to make it easier for them and other tribes. But by changing the rules, while denying them a chance to try again, the Department of the Interior has muddled the issue and litigation may well result.
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