"This memo is as close to a smoking gun as we've seen and should be the beginning of the end for a system that is dominated by lobbyists, special interests and investors who pervade [the recognition process]," Mr. Blumenthal said in a written statement.
The attorney general termed the memo "shocking proof that the Schaghticoke recognition is a sham, without a shred of credibility or integrity."
He called the BIA "a rogue agency, out of control, lawless and ready to twist and distort logic and law in reaching a decision driven by money and politics."
The references to money, special interests and investors by Mr. Blumenthal are tied to the STN's potential ability to open Connecticut's third Native American casino.
Federallyrecognized tribes are allowed to create casinos in state's that sanction organized gaming, and Connecticut has been labeled such a state-though a law allow charitable groups to operate Las Vegas Night gambling events has been repealed.
To avert a fight over a Schaghticoke memo, Mr. Blumenthal has moved to appeal the BIA decision, but the appeal might be put on hold based on other avenues the attorney general is pursuing since the memo was made public.
The Office of Federal Acknowledgement memo does appear to be calculating in its attempt to find a way to confer legitimacy on the tribe's petition-even though a preliminary BIA decision determined that the STN petition would be denied because of the gaps in establishing a necessary continuity in terms of tribal heritage and political structure.
The memo asks for guidance from the assistant secretary of Indian Affairs "concerning two issues that must be resolved in order to complete the final determination on the [STN]."
It notes that the preliminary finding found that the STN failed to demonstrate continuity of community between 1940 and 1967 but said additional data supplied by the tribe following the preliminary finding satisfied this criterion. However, problems remained in the more recent past on the issue of continuity of community.
More telling was the group's failure to demonstrate political influence between 1800 and 1875 and between 1885 and 1967.
Even with the additional information supplied following the preliminary finding, the BIA memo said, " ... there remains a lack of evidence for [political influence] between 1820 and 1840 and insufficient evidence between 1892 and 1936."
The memo added that the necessary criteria had not been met because the STN membership "did not include a substantial portion of the actual social and political community, a faction that continues to refuse to enroll."
That faction is the Schaghticoke Indian Tribe, which lays claim to the 400-acre reservation in Kent.
The memo then poses the question of whether the petitioner should be acknowledged "even though evidence of political influence and authority is absent or insufficient for two substantial historical periods ... ?"
In the preliminary finding against the STN, the BIA concluded that the Schaghticokes' formal relationship with the state of Connecticut did not overcome the lack of evidence to support a claim of continuous political influence.
Although the tribe has lived on the state-sanctioned reservation dedicated to its use since 1752, the recently revealed memo says there is "no evidence of a government-to-government relationship with Connecticut throughout the entire historical span. The state relationship with them has been an active one, and was active during both of the time periods, [but] with little direct evidence of political influence."
The memo concedes that BIA regulations require demonstration of a "substantially continuous tribal existence," and that a petitioner is to be denied if there is insufficient evidence to support the case. It acknowledges that deficiencies in the STN's case "are similar to, though less extensive, than found by researchers for the petitioner in earlier stages of preparation of the petition."
There follow four options that the BIA could consider: acknowledge the tribe despite its lack of evidence; decline to acknowledge the Schaghticokes based on the regulations and existing precedent; acknowledge the Schaghticokes outside of the regulations, or decline to acknowledge the STN "but support or not object to legislative recognition."
Of these options, number one was given the most detailed attention. Here the writer of the memo said, "Option 1 would require a change in how continuous state recognition with a reservation was treated as evidence in the STN [preliminary finding] and in the Historical Eastern Pequot [HEP] decisions."
The preliminary BIA finding said evidence of political influence was lacking because there was no known state dealings with Schaghticoke leaders, and that the existing state relationship was "not a substitute for direct evidence of political processes ... ."
After briefly reviewing the other options, the Office of Federal Acknowledgement (OFA) endorsed Option 1 as being "most consonant with the overall intent of the regulations."
The document then turned its attention to the other obstacle to recognition: the splinter groups that formed within the tribe. It poses the question, "Should the STN be acknowledged even though a substantial and important part of its present-day social and political community are not on the current membership list because of political conflicts within the group?"
The memo acknowledges that the dissident Schaghticoke Indian Tribe, most of whose members live on the reservation, "were an essential part of the evidence for the preliminary finding's conclusion that the STN met the criterion for [community and political influence] between 1967 and 1996, and their absence was one of the reasons the preliminary finding concluded these criteria were not met from 1996 to the present. After 1996, these individuals either declined to re-enroll as the leadership required of all members or subsequently relinquished membership because of strong political differences with the current STN administration."
Members of the SIT have continued to resist pressure to join the STN, which has developed a list of 43 individuals that it considers members of its group, although they are not enrolled. The OFA put the tally at 54, based on different estimates of family size.
The OFA listed three options to resolve this inconsistency: acknowledge the STN as defined by its current membership list; acknowledge the STN, but define its base membership as those currently listed and the 54 additional members; or decline to acknowledge the STN as not comprising the complete group.
The OFA endorsed the second option even though it would include persons who "have not specifically assented to or been accepted as members."
Mr. Blumenthal said the memo, which was only recently revealed under laws that require disclosure of documents that constitute the administrative record, "will be powerful evidence in undercutting the recognition decision in courts and administrative proceedings."
He called for three emergency steps: a moratorium imposed by the secretary of the interior on all recognition decisions; a Department of Justice investigation into the Schaghticoke decision, and suspension of the appeal of the Schaghticoke decision indefinitely until facts relating to it are known.
"I will write immediately to the secretary of the interior seeking a moratorium on recognition decisions and a stay on appeals before the Interior Board of Indian Appeals and to the attorney general of the United States requesting an investigation," he concluded. "Continuing to tolerate the existing tribal recognition system ... threatens to cause irreparable and irrevocable harm. Full, far-reaching reform is vitally necessary through Congressional action."
Kent's town attorney, Jeff Sienkiewicz, was also excited by the memo.
"I was surprised by it," he said. "Basically they're saying they didn't follow the regulations. I think there are other issues, other areas where they completely departed from the regulations, but here their staff concedes that the tribe doesn't meet the criteria. The staff basically said, 'Oops, we've got problems, how will we overcome them. They talk about a lack of precedence for what they did-precedence is supposed to be there to guide you."
He said that there are two, and possibly three, distinct Schaghticoke groups. "That's not a community," he said. "The animosity among these people is such as to undermine any political influence."
Although Mr. Blumenthal will seek to stay the appeals process, and although Kent has not yet decided to join the appeal the BIA's decision, Mr. Sienkiewicz said he continues to prepare for that eventuality.
"We have to appeal within a timeframe," he said. "The state has to pursue its appeal and the parties who plan to appeal still need to go forward in an orderly fashion. I am Kent's town counsel and I just can't sit on my hands while the town comes to that decision. I am proceeding as if there will be an appeal until they make a decision."
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