Former BIA head says Schaghticoke petition was the best

By Gale Courey Toensing, originally published at Indian Country Today:

Aurene Martin (360-usa)

Aurene Martin

NEW HAVEN, Conn. – In a surprising declaration that challenges the grounds used to overturn the Schaghticoke Tribal Nation’s federal acknowledgment, the former head of the BIA has testified that the tribe’s petition was among the best ever reviewed by the Indian agency’s research staff, and the best reviewed during her entire tenure at the Interior Department.

Aurene Martin, the deputy assistant secretary for Indian Affairs from October 2001 to July 2002 and acting assistant secretary for Indian Affairs until February 2004, praised the tribe’s 30,000-plus page petition for federal acknowledgment in a legal declaration signed July 18.

”The consensus among the OFA’s highly trained research staff was that the STN petition was among the best and most thoroughly researched petitions ever reviewed by the BIA. It was certainly the best among those that we reviewed during my tenure in the Department [of the Interior],” Martin wrote.

Martin’s declaration has been submitted to the U.S. District Court in New Haven among a flurry of other motions seeking discovery and depositions as part of STN’s appeal of the Indian agency’s unprecedented decision last October to rescind the tribe’s federal recognition. The appeal asks the federal court to restore the tribe’s federal acknowledgment, citing violations of due process and improper political influence on federal decision-makers by Connecticut’s politicians in overturning the BIA’s recognition decision.

Defendants in the appeal are Interior, former Interior Secretary Gale Norton, Interior Associate Deputy Secretary James Cason, the BIA, the OFA and the Interior Board of Indian Appeals. Martin headed the BIA when the tribe received a negative proposed finding in December 2002 and, after submitting volumes of additional documentation, achieved a positive final determination. In both cases, it was Martin who telephoned the news to Chief Richard Velky.

The recognition was overturned in October last year after a year and a half of intense opposition and lobbying by Connecticut’s local, state and federal officials; an anti-Indian citizen’s group called TASK; and TASK’s powerful Washington, D.C., lobbyist, Barbour, Griffith and Rogers. Cason, who signed off on the negative ”Final Reconsidered Determination,” conveyed the news to the tribe by fax. Martin’s statement refutes two controversial issues Cason used to rescind the tribe’s federal acknowledgment: state recognition and intra-tribal, or endogamous, marriage rates. Velky and attorneys for the tribe declined to comment on the significance of Martin’s declaration or how much weight it might carry in the appeal because of a gag order imposed on the appeal process by Interior.

Martin said she and the OFA researchers had carefully scrutinized the tribe’s petition in regard to the seven mandatory criteria for federal recognition; when the positive final determination was issued, ”there was an agreement among the staff involved in the review of the petition that STN met its burden of proof under all of the applicable criteria for federal recognition,” Martin said.

In reversing the tribe’s federal status, Cason gave credence to state Attorney General Richard Blumenthal’s claim that state recognition could not be used as evidence of tribe’s continuous existence – despite the fact that it was used extensively in the case of the Mohegan Tribe, which had voluntarily de-tribalized in the late 19th century. He also cited Blumenthal’s argument that there was a discrepancy in the method of calculating Schaghticoke endogamous marriages that lowered the marriage rate for a short period in the 19th century to just below the 50 percent threshold that counts as evidence of continuous community and political authority. The tribe could not locate written documentation proving state recognition for a 12-year period in the 19th century, Martin said.

”Since written documentation existed for the years immediately before and immediately after this period and there was no indication whatsoever that the lack of a written record was due to termination of the tribe’s political existence, it was our collective opinion that the lack of documentation did not indicate a lack of political continuity. Additionally, before, during and after this period, the State of Connecticut recognized the STN as a political entity, occupying its own territory within the state’s borders,” Martin said.

The tribe has a 400-acre reservation on Schaghticoke Mountain in Kent, the remains of a 2,500-acre reserve that was set aside for the tribe by the colonial government in 1736. Land-claim lawsuits for around 2,100 acres of mostly undeveloped land adjacent to the reservation are pending. Martin testified that the professional OFA staff, which includes anthropologists, historians and genealogists, had determined through its review of available evidence that the state had recognized the tribe as a distinct community and dealt with it as a separate government even during the 12-year period that lacks documentation.

Further, she noted that Connecticut’s other state-recognized tribes were denied the right to vote in state elections until the early 1970s. ”In my opinion, the denial of the right to vote in the state’s elections to members of the state recognized tribes was conclusive evidence to me that in the state’s eyes, the tribal members were members of another distinct political entity,” Martin said.

Martin said she and the professional researchers also examined other evidence of state action and legislative acts both within the state of Connecticut and elsewhere and found that ”when compared to other states, the actions of the state of Connecticut with respect to STN were substantial and continuous.”

In regard to the STN’s marriage rates, Martin said the staff evaluation showed the tribe’s marriage rates could be calculated using a variety of different acceptable methodologies, one of which showed that the tribe’s marriage rates ”fell just shy of the target rate contained in the federal criteria.” Another method resulted in rates that surpassed the criteria’s target rate, Martin said.

The professional researchers were allowed to use the method of calculating marriage rates that they believed to be most suitable, Martin said, and unanimously decided to use one of the methodologies that showed the tribe surpassed the criteria. But even if the alternative method had been used that showed ”a minute shortfall” in the marriage rates, ”the positive recognition … would not have been changed. The professional staff concluded that STN had a significant rate of endogamy, and we were never presented with anything to suggest that there was a significant issue with regard to STN’s marriage rates,” Martin said.