You asked about Schaghticoke land claims and possible sites for a casino, the Schaghticoke petition for federal recognition, and problems that the attorney general sees with the recognition petition.

SUMMARY

The Schaghticoke land claims affect about 2,000 acres in Kent. These cases are filed in federal court and are currently on hold, awaiting the determination by the Bureau of Indian Affairs (BIA) on the Schaghticoke group's petition for federal recognition. The Schaghticoke's petition to the BIA is currently under active consideration by the bureau and a proposed finding is anticipated by the end of the year.

According to newspaper articles, the Schaghticokes have considered a number of sites for a casino. The articles specifically mention Union Carbide property in Danbury and state that the group has looked at a number of sites in Fairfield and New Haven counties, including sites in Waterbury, Bridgeport, New Haven, and Stratford.

The attorney general, along with the Connecticut Light & Power Company, Kent School Corporation, and the Town of Kent, submitted a brief to the BIA last month to comment on the Schaghticoke Tribal Nation's petition for federal recognition. The brief questions whether the petition satisfies several requirements for federal recognition (see OLR report 2002-R-0522 for a discussion of the federal recognition process).

The attorney general and others joining in the brief argue as follows.

1. A group petitioning for federal recognition must show that it existed as a distinct community and that political relationships existed between group leaders and members since the time of first sustained contact with non-Indians.

2. In western Connecticut, Europeans arrived in the mid-1600s but the Schaghticoke tribe does not claim tribal existence until about 100 years later. In addition, Europeans directly influenced the Schaghticoke group's formation. For purposes of federal acknowledgment, the modern group is a wholly new and separate entity from the historic Schaghticoke group.

3. There are lengthy periods of time, including almost the entire 19^th century and a large part of the 20^th century, where evidence of tribal community and political authority is absent. The dispersal of members in the early 19^th century significantly diminished the group's membership, resulted in fragmentation of the community, an absence of leadership, and only family connections remained.

4. This situation continued into the 20^th century: group leadership was ambiguous and activities cited as demonstrating community and leadership were largely oriented toward and dominated by others. Disputes over control of the group's leadership and reservation in the last two decades show the lack of unified leadership.

5. The state has not treated the Schaghticokes as a sovereign tribal entity. State overseers and agencies have had individualized relationships with people requiring state assistance and evidence of state recognition cannot make up for the lack of community and political evidence under the federal requirements.

6. Under the federal recognition requirements, the Schaghticoke must show that its members descend from an historical tribe but they have not provided essential documents and have not answered important questions about key families and individuals. A BIA precedent shows that a group cannot be recognized as a tribe if it descends from only one family because a tribe requires a community that extends beyond single families. The Schaghticoke petition does not show that its members descend from more than one family.

ATTORNEY GENERAL'S ARGUMENTS ABOUT TRIBAL EXISTENCE FROM THE TIME OF FIRST CONTACT WITH NON-INDIANS

The attorney general states that federal law and regulations require a group to show that it has had a substantially continuous tribal existence and has functioned as an autonomous entity throughout history until the present. He states that this requires a group to trace its existence to a tribe that was an independent, fully functioning entity at the time of first sustained contact with non-Indians.

The attorney general argues that it is a "fundamental and fatal defect" of the claim that the Indians at Schaghticoke did not become a community until well after first sustained contact with non-Indians. He states that there is abundant evidence that contact occurred between Indians and non-Indians throughout the area well before the Schaghticoke tribe came into being in the mid-18^th century. (The attorney general considers the relevant area as western Connecticut, western New York, and southwestern Massachusetts. ) Tribes came into contact with colonial authorities and settlers throughout the 100 years before the Schaghticoke community emerged and the attorney general states that tribal sovereignty cannot be created after the point when Europeans had a sustained presence in an area.

He also distinguishes the Schaghticoke petition from BIA decisions that granted acknowledgment to splinter groups or tribes that consolidated into a new entity. He states that those decisions involved (1) pre-existing tribes that came together through deliberate acts or (2) offshoots of tribes that existed at first sustained contact. He argues as follows.

1. The Schaghticoke group was not formed by pre-existing tribes but by individuals and families that belonged to other historic tribes and were dislocated by European settlement.

2. The Schaghticoke group was not an offshoot because the Indians came from different tribes. The Indians were not a group moving to a new location or migrating. The BIA denied recognition to a similar group when it found that the group's ancestors moved independently of each other and were not related politically or genealogically before settling together.

3. Formation of the Schaghticoke community was greatly influenced by Europeans who played a principal role in transforming the group of individuals into a community. Individual Indians joined together because of a common interest in the Christian teachings of Moravian missionaries. The Moravians made their first conversions at Schaghticoke in 1743. It appears that the alleged Schaghticoke tribe emerged from this group. The Christian group emerged as a separate entity and conversions led to a distinct tribal community at Schaghticoke.

4. The Schaghticoke petition admits that the Moravian missionary presence makes it possible for the first time to identify Schaghticoke as a distinct tribe. This concedes the absence of a pre-existing tribe and the absence of a leader before then. The role of the Moravians undermines a claim of pre-existing tribal sovereignty. A tribe that emerges in this manner after first sustained contact does not qualify for acknowledgment.

ATTORNEY GENERAL'S ARGUMENTS ABOUT COMMUNITY AND POLITICAL AUTHORITY

The attorney general states that a group must show that it existed as a distinct community from historical times to the present and maintained political influence and authority over members during that period.

Community

The attorney general states that the petition devotes substantial attention to the mid- and late-1700s but offers little about the 1800s. He states that the Schaghticoke petition does not show the types of community and political activities needed for federal recognition for the 19^th century (with two isolated exceptions) and most of the first half of the 20^th century. The attorney general argues as follows.

1. The evidence does not show cooperative or communal enterprises, shared responsibilities, or transmitting culture across family lines. The evidence identifies people as leaders but there is no evidence of real political influence over any significant period of time in the century. The evidence instead reflects a lack of political authority and influence.

2. Throughout the 1800s the group continued to disperse and tribal relations and community virtually disappeared. The petition offers general statements about cooperative work, maintaining herbal lore, and basket making but it is not supported by evidence of the kind of community activity required by the federal recognition criteria. The evidence discusses activities of individuals and individual families.

3. The inability to produce evidence is not merely a matter of the difficulty of obtaining evidence. Beginning in the early 19^th century, the group declined significantly in numbers and members scattered. Contemporary observers, the Schaghticoke petition, and overseers' reports show this.

4. The overseers' reports do not show community activities. They only show that individuals received state support and assistance. The overseers provided assistance to those away from the reservation but this does not support an inference that relations or community-based activities existed between those on and off the reservation.

5. There is no direct and little indirect evidence that community relations or activities took place between the increasingly dispersed members of the group. There is no real evidence even among those on the reservation that (a) community activities and not just individual economic activities persisted or (b) cultural or economic activities crossed family group lines.

Political Authority

The attorney general states that a group must demonstrate that leaders exercised actual influence over the broader membership and the membership participated in and influenced political activity. He states that in the 19^th century, with two exceptions, there is an absence of evidence of sustained political influence and authority and the lack of leadership is reflected in the overseer's involvement in providing for individuals. He states that the absence of evidence is a compelling demonstration that a political community did not exist.

The attorney general questions the importance of certain evidence presented in the Schaghticoke petition. He argues as follows.

1. The petition cites several people as tribal leaders and "culture-keepers. " The need to find leaders in the form of "culture keepers" stems from the fact that there were no others exercising political leadership. There is no evidence that these individuals had the type of political authority needed to satisfy the criteria, such as the ability to mobilize people or resources, allocate resources, resolve group disputes, exert strong influence over members, or organize group economic activity.

2. The Schaghticoke petition also cites two petitions to the General Assembly (in 1876 and 1884) for new overseers. These are the first petitions and arguably the first documented political actions since 1799. There is no evidence about the context of these petitions and whether they resulted from internal political processes, as opposed to actions prompted by the person seeking the appointment. At most, they reflect a response to a crisis and sporadic, crisis-oriented leadership is insufficient under the criteria. An appropriate inference is that the Schaghticoke group was not a real political community but individuals dependent on state aid who signed a petition for a new overseer.

3. The petition states that leadership was informal. It appears that a dual form of leadership developed, with one leader on the reservation and another off the reservation, with little cross-family interactions. This reflects the breakdown of the Schaghticoke community, the inability to maintain relations, and the lack of leadership structure that exerted political influence beyond extended family groups. The failure of leadership to transcend family lines is a "fatal flaw. "

4. The petition asserts that members living off the reservation kept in touch through informal meetings, visits, and family communications but there is no direct evidence of this. This means that there was no organized tribal activity. There is almost no evidence beyond ordinary family contacts. The BIA has concluded in the past that relations with extended family are not sufficient evidence of community.

5. The purported leadership related to rattlesnake hunts (in the late 19^th century until about 1920) has little to do with tribal political authority. There is no evidence that these leaders addressed or resolved significant issues for members. There is no credible evidence that the hunts were a significant cultural practice of the broader group. There were few Schaghticokes involved and the hunts focused on outsiders.

6. The petition discusses the significance and trauma of relocating a cemetery to build a hydroelectric dam on the Housatonic River in 1904 but there is no evidence of any tribal activity in response to this event. All the evidence relates to the actions of others.

Community and Political Authority in the 20^th Century

The attorney general criticizes the evidence of community and political authority in the 20^th century. He argues as follows.

1. The early decades of the 20^th century were "marked by substantial group passivity" and there was no meaningful tribal leadership. The failure to maintain any real inter-family contact shows the lack of a distinct Schaghticoke community within the meaning of the federal recognition regulations.

2. A 1935 report prepared for the BIA and a 1936 state Park and Forest Commission report state that the group did not have a leader.

3. There is limited evidence of community and political activity from 1940 to 1970. There is some evidence of reorganization beginning in the 1940s and 1950s, with land claims before the Indian Claims Commission, but this activity was short-lived and the group then became largely passive until renewed reorganization activities in the 1960s and 1970s.

4. Leadership ambiguity continued. Franklin Bearce, a non-Schaghticoke, organized pow-wows, led group meetings, and initiated and took charge of land claims in the 1950s but he was not accepted as a Schaghticoke or as chief. The petition states that Howard Harris was chief but there is no evidence about actual leadership by him and he was not formally elected tribal chairman until 1954, prompted by Bearce's efforts to legitimize his pursuit of the land claim. Harris' leadership did not extend to the entire membership and the ambiguous leadership continued.

5. Political activity dissipated after Bearce left. The Schaghticokes are unable to identify with certainty who exercised leadership. The group's leadership remained ambiguous and these contradictions would not exist if a leader actually exerted political influence broadly over group members.

The attorney general also questions the importance of specific evidence offered by the petition. He argues as follows.

1. The pow-wows in 1939 and 1941 were less about the Schaghticoke community than broader Indian celebrations, which diminishes their significance as evidence of community. The petitioner is unable to show substantial participation by Schaghticokes. They were prompted by the leadership of Bearce, a non-Schaghticoke, which reflects the lack of internal political activity. There is little evidence about other pow-wows in the 1930s and 1940s and almost no detail about the breadth of group participation, nature of activities, or extent that they involved more than extended family groups.

2. The land claims in the 1950s were motivated by Bearce. This shows the lack of political authority and community before Bearce's arrival. Bearce and not the Schaghticoke political process initiated the meeting to commence the claim.

The attorney general states that Irving Harris became chief in 1967 and tried to reorganize the group. He argues that his efforts to reorganize the group, create formal political structures, and expand tribal rolls show the lack of community and political authority in prior decades. He states that the apparent lack of familiarity with other purported group members, especially across family lines, is consistent with the absence of a distinct Schaghticoke community in the earlier part of the century.

The attorney general concludes that the group forged in the 1970s is a new entity and it cannot be given federal tribal status.

Current Conflicts

The attorney general asserts that the division among Schaghticokes for the last 20 years also shows the lack of political authority. The attorney general argues as follows.

1. Another group, led by Alan Russell, rejects the legitimacy of the Schaghticoke petition and its leadership. (It filed its own letter of intent to petition for recognition. )

2. These factions are formed largely on family ties and show that political leadership does not transcend family groups.

3. The inability to resolve this factionalism shows the lack of political authority and the absence of a tradition of political relations. Internal conflicts can be evidence of political authority. Instead, this shows the inability to exercise political authority of the type required by the federal criteria.

4. The factions repeatedly turn to external authorities to resolve their conflicts (leadership challenges to the state Indian Affairs Council and lawsuits between the two groups in Superior Court). This shows that there is no internal mechanism to resolve conflict. The Schaghticokes have not referred to their own political tradition to resolve disputes.

5. There is also limited evidence that the issues causing these conflicts are important to the broader membership and little evidence of political activities of the broader group.

6. These disputes show the breakdown of the internal political processes and lack of political influence and authority.

State Recognition

The attorney general also rejects the argument that relations between the state government and the Schaghticoke support recognition under federal standards. He argues as follows.

1. For most, if not all of the time, the state has not treated Indian groups as distinct social communities with political authority and sovereignty.

2. The appointment of overseers and appropriations for the Schaghticoke group does not reflect the state's acknowledgment of the group as a sovereign Indian community. The state never acted in a way that recognized petitioner as a tribal community within the meaning of the federal regulations. There is no evidence that overseers dealt with the group collectively or that group acted collectively with the overseer. Overseer reports and records of the Park and Forest Commission and Welfare Department show accounts maintained and settled on an individual basis. Welfare Department records show expenditures on an individual basis and nothing about tribal decision-making or interaction with group leadership.

3. Appropriations were made for the "Schaghticoke tribe of Indians" in four special acts between 1915 and 1921 but their legislative history shows they were intended for a small group of people in need of care.

4. The evidence also reflects a lack of state standards or evaluation similar to the federal regulations. The way the state recently recognized several tribes is not a basis for supporting federal recognition.

5. Under the constitution, the federal government has exclusive authority over Indian relations and a state cannot recognize a tribe for federal purposes. Throughout most periods, the state did not have a specific definition of Indian or Indian tribe and had no process to determine that status. In 1989, the legislature adopted an act recognizing five "indigenous tribes," including the Schaghticoke, as self-governing entities with powers and duties over tribal members and reservations. It expressly stated that it cannot be construed to confer tribal status under federal law.

6. Nothing suggests that the state conducted the kind of research contemplated by the federal standards. There is no legislative evidence that the recognized groups exercised the powers listed in the legislation or that they were a distinct community with political relationships historically and on a continuous basis.

7. A state relationship with a group of Indians on a reservation does not show that the group acted as a distinct social community with political autonomy. It says nothing about the relationships among group members and whether they are significant enough to be a distinct community. There is no basis to assume continuous political relationships.

Other Opinions

The attorney general also cites a 1993 letter from an expert in tribal acknowledgment (Dr. William Starna) initially engaged by the Schaghticoke petitioner that states that the Schaghticoke could not meet certain federal criteria. He also discusses the opinions and reports of others.

ATTORNEY GENERAL'S ARGUMENTS ABOUT THE DESCENT OF MEMBERS FROM THE HISTORICAL TRIBE

The attorney general asserts that there is uncertainty whether members of the petitioner's group descend from the historical tribe. He states that vital records and other key documents (including individual records for the current membership rolls, probate records, school records, and tax records) have not been made available and several key questions are unanswered by the evidence.

He adds that the petitioner did not address the problem identified by the BIA in its 1995 technical assistance letter about whether the Schaghticoke descended from more than one family line. The letter stated that acknowledgment depends on descendancy from a tribal unit and not a single individual. The attorney general states that the petitioner did not resolve this issue and questions whether it can do so. The attorney general states that the petitioner expanded the number of families from whom current members descended but this is also problematic. He also has specific questions about certain individuals.

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