September 24, 2013

In official comments submitted to the Bureau of Indian Affairs (BIA) today, Attorney General George Jepsen wrote that the BIA’s proposed regulations would “seriously weaken and undermine the core substantive criteria” for federal tribal recognition and would have the effect of reversing prior acknowledgment decisions affecting the state of Connecticut. Governor Dannel P. Malloy said that the proposed regulations would have a profound effect on the state.

“While I’m sure the Bureau of Indian Affairs has the best of intentions, the proposed regulations would have far-reaching, damaging consequences here in Connecticut and would be detrimental to Connecticut’s residents,” said Governor Malloy.  “I support the comments submitted today by the Attorney General and hope the Bureau of Indian Affairs takes these thoughtful comments to heart.”

A preliminary discussion draft issued by the BIA in June would change criteria that currently require demonstration of distinct community and political authority since contact with European settlers. Under the proposed changes, both criteria would be satisfied by merely demonstrating that a state has maintained a state reservation since 1934. The draft also would allow a previously denied petitioner to re-petition if it can demonstrate that the changed criteria warrant a reversal of prior denial.

“The Draft’s proposed relaxation of the substantive acknowledgement criteria is apparently based on a notion that satisfying the present community and political authority is overly burdensome and unnecessary. The current criteria are not the problem,” wrote Attorney General Jepsen. “Acknowledgement presents complex and obviously very important questions of governmental power with extraordinarily serious ramifications for all involved. The present criteria appropriately require significant substantive inquiries and expansive factual findings. The Draft offers a fix that is seriously misguided.”

A new “expedited favorable finding” process would allow groups to satisfy the community and political authority criteria by simply showing that a state reservation was maintained for the group since 1934. This is uniquely significant for Connecticut. This change could effectively reverse prior decisions denying recognition to the Eastern Pequot, Schaghticoke and possibly the Golden Hill Paugussett petitioners, contradicting findings in previous recognition decisions that determined that the maintenance of state reservations itself offered no evidence of community or political authority.

“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 an Indian tribe and to place them in a government-to-government relationship with the federal government,” the Attorney General wrote. “These two core criteria are derived from a long line of judicial precedent that emphasizes both community and political authority as essential attributes to the existence of a tribal sovereign entity.”

Additionally, the draft proposals would eliminate appeal review by the Interior Board of Indian Appeals, a move Attorney General Jepsen called “unwise.”

The discussion draft is a preliminary precursor to a formal rulemaking process and is intended to provide tribes and the public an early opportunity to provide comments on proposed changes. The BIA’s comment period on this discussion draft closes this Wednesday, September 25.

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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