BIA Recognition Changes in Connecticut

10 minute read

I’ve been meaning to write an in-depth single about the Bureau of Indian Affairs attempt to change the process for tribes getting recognized and the backlash it’s received in Connecticut since it was announced last summer but simply haven’t had the time (or energy) to get around to it. Because I have no time to write something proper, here’s a basic overview.

I. The Current Policy and Changes

In June of last year the Bureau of Indian Affairs proposed changing the policy for tribal recognition. To quote the BIA announcement, the current policy is “expensive, burdensome, less than transparent, and inflexible.”1 The current policy requires tribes seeking recognition to provide documents showing “existence since historical contact, prove descent and identity from a historical tribe, demonstrate political structures and influence over their members, and prove they maintained strong community and social ties.” The financial costs, bureaucratic slowness of the process, and inability of tribes to meet the documentary requirements meant that between 1978, when the policy went into affect, and the late 1990s only fourteen tribes had been recognized and thirteen denied acknowledgement.2

Mark Edwin Miller’s book Forgotten Tribes is probably one of the better resources for understanding the recognition process and the issues it presents for tribes seeking recognition. Most of the tribes seeking recognition have no way to fund their bid (or the subsequent appeals) because their main source of support for their communities would be federal support which they can’t get unless they’re recognized. In addition most tribes are largely orally based so one can easily see the issue with the requirement to provide documentation to historical contact. There’s other issues for individual tribes, one example would be the Lumbee Indians in North Carolina which dealt with a number of racial issues in terms of defining a racial identity in the south that continues to influence their recognition attempts.3 The BIA’s proposed changes would revise a number of issues but the biggest change is the requirement to show political authority only back to 1934 and the Indian Reorganization Act, which would potentially cut down on the expenses and documentary requirements for tribes.4

II. Connecticut’s History

Before tackling the response by Connecticut’s politicians and local residents, it’s important to note the history of Native American tribes in the state and the recent history in regards to recognition. In 1983 the Mashantucket Pequots received federal recognition through an act of Congress. Few paid attention to the tribe until they opened a bingo hall in 1986 and more particularly when they added table games and slot machines in 1992 and 1993 respectively. Today Foxwoods is one of the largest casinos in the world and the lucrative business has caused some to question the authenticity of the tribe. Donald Trump, suffering from declining revenue at his Atlantic City casinos during the early 1990s, testified before Congress and argued he was more Native American than most of the Pequots. CBS’s 60 Minutes ran a segment entitled “Wampum Wonderland” that argued much the same thing.5 There also developed a cottage industry of writers publishing books attacking or providing “untold stories” of how the Pequots managed to get a casino without being Native American. Jeff Benedict’s Without Reservation: How a Controversial Indian Tribe Rose to Power and Built the World’s Largest Casino is probably the most well known and tells an intriguing story but fails to address (or understand) most of the basic issues involved in native identity, federal policies, or other substantive background material.6

In contrast Renée Cramer’s Cash, Color, and Colonialism: The Politics of Tribal Acknowledgement looks at the influence of gaming on acknowledgement politics both in Connecticut and throughout the United States. Essentially once the Pequots opened Foxwoods any tribe seeking recognition in the state (The Eastern Pequots, Golden Hill Paugussetts, and Schaghticokes are all state recognized and have sought federal recognition) were doing it because they wanted a casino. In one particularly appalling incident, Bob Englehart at the Hartford Courant drew an editorial cartoon of the Golden Hill Paugussetts and gave them names including “Chief So Sioux Me” and “Nike Hide Tanner” (the tribe has a large African American heritage)7

III. The Current Debate

Almost immediately after the announcement, Connecticut officials and residents objected to the new proposal and argued it would dilute the recognition process and would open the door to more casinos in the state and land disputes. Stonington First Selectman Nicholas Mullane II said:

“Tribes won’t have to be historical tribes anymore,” he said. “There are tribes that have maintained their continuity from Day One, that have acted as a tribe, with a chief, a structure, members; now the BIA’s saying they don’t need that.

“There just won’t be any stringent requirements anymore.”

The article notes that the Eastern Pequots and Schaghticokes received recognition through the process only to have it reversed later. The doesn’t mention the reversal was a highly political affair lead by politicians such as Dick Blumenthal who was the state’s attorney general and is now the state’s senior senator.8

More appalling, however, was the editorial published in the Hartford Courant in early August of last year and the companion piece by the aforementioned Benedict. The editorial is full of falsehoods and poor understanding of tribal issues. For instance the anonymous writer wrote:

Federal recognition is essentially a gaming permit in states that allow gambling. The federal Indian Gaming Act of 1988 allows tribes to operate any kind of gambling that is legal in their states. In an odd legal twist, casino gaming was allowed in Connecticut because of its “Las Vegas Nights” law, which allowed charities to run casino-style fundraising events.

False. The paper conveniently leaves out that the full name of the act is the Indian Gaming and Regulatory Act (emphasis mine). The act actually limited tribal sovereignty and was passed in response to California v. Cabazon Band of Mission Indians from the previous year. In that case the Supreme Court ruled California could not enforce gambling laws on tribal lands due to tribal sovereignty.9 Essentially Cabazon expanded Native gaming rights at the same time there was a rise in Native gaming enterprises. As such Congress passed the IGRA that limited native sovereignty by creating three classes of gaming and requiring tribes to negotiate a compact with the states they reside in for high-stakes games against the house. States are required to negotiate in “good faith” but there is little in the way of definition for what that means. So even if Connecticut tribes did receive recognition they’d had to negotiate with the state to open casinos a la Foxwoods.

Then there’s this:

The two tribes that gained federal recognition, the Mashantucket Pequots and Mohegans, opened casinos and were given the exclusive right to operate slot machines in return for 25 percent of the net revenue, per the deal negotiated by Gov. Weicker. It has brought the state much wampum.

Yes, that’s stereotypical Indian speech in a newspaper editorial in 2013. Finally the article presents this argument:

Big-time Indian gaming — a highly questionable policy to begin with — has been with us for a quarter-century. Most of the real tribes have all been recognized by now. States have made compacts with them. New ones that come along need more scrutiny, not less.

As noted see Miller, Mowery, and other books listed in their footnotes for more on why this is explicitly false.

In a separate editorial earlier this month the Courant rehashed many of the same arguments and then adding this insulting note:

But under the proposed new rules, the requirement that a tribe has maintained continuous cultural community and political authority since historical times would be eliminated — the date would be upped to 1934. That would appear to make the Hartford Elks Club eligible.

That, in many respects, is nearly as insulting as using Tonto speak in 2013.

The Norwich Bulletin has an editorial similar to the Courant’s but focuses more on land claims:

The immediate concern is the prospect of additional casinos. Gaming interests, from Donald Trump to Steve Wynn, financially backed the tribes’ first attempt at federal recognition, and tribal leaders did nothing to dispel suggestions that casinos were part of their plans.

The issue, however, is far more complicated.

If granted federal recognition, land claims will be filed seeking to take large tracts into trust, many of the parcels already developed. That could cloud title to hundreds of properties and remove thousands of acres from tax rolls. That is the state’s primary concern, but with a dose of hypocrisy.

Governor Dannel Malloy mentioned this as a reason in his letter to President Obama opposing the policy changes. Land claims were a driving force in the recognition of tribes like the Pequots in the 1980s as Passamaquoddy tribe in Maine sued the state claimed it had rightful title to roughly half the state lands as a treaty the tribe signed with the state violated the federal Nonintercourse Act which established a trust relationship between the tribe and the federal government. Yet land claims are no longer a serious issue according to UConn law professor Bethany Berger:

But Bethany Berger, who’s a professor of law at UConn, said a 2005 court ruling has removed that threat. “Since then, essentially land claims have become pretty toothless,” she told WNPR’s Where We Live. “Tribes can no longer bring land claims against the state that are going to be recognized in this area, so that’s no longer an issue.”

There’s also the idea that Connecticut is unique in that it has a majority of the tribes who would benefit from the new rule:

Connecticut, uniquely, is home to three of the five tribes in the entire country that would presumably be helped by the change, according to Malloy. And they are the only tribes of the five who have been officially denied federal recognition.

I’m not sure where Malloy gets the idea from but there are far more than five tribes in the United States that would benefit from the changes. It’s telling the BIA did not schedule a public hearing on the issue in Connecticut but instead scheduled them in Michigan, Oregon, Maine, Louisiana, and California, all states that have tribes with interest in the measure. If anyone can shed more light on this, due let me know but as of right now it doesn’t pass the smell taste.

Happily, the editorials aren’t all bad. The Connecticut Post published a delightful editorial that should be read in full but to quote part of it:

If casinos are the problem, address the problem.

Don’t tell a group of people you’ve recognized for centuries as Indians that now, with dollars at stake, you don’t think so anymore. When the tattered remnants of these long-recognized tribes moved on to state reservations generations ago, it wasn’t because they were plotting to open casinos.

The issues involved in updating the BIA’s criteria are complex and go well beyond the State of Connecticut. Even the issues related to Connecticut that I’ve attempted to address here are too complex for a single blog single. At some point in the future I may write something more formal, although there’s already a copious amount of literature on the subject for those interested. Feel free to take a look at my cursory historiography of literature on Pequot identity and gaming for additional resources on the subject.10 Finally for a broader look at Native gaming Jessica Cattelino’s High Stakes: Florida Seminole Gaming and Sovereignty is a helpful resource and starting point.

  1. http://www.gpo.gov/fdsys/pkg/FR-2013-06-27/pdf/2013-15329.pdf 

  2. Mark Edwin Miller, Forgotten Tribes: Unrecognized Indians and the Federal Acknowledgement Process (Lincoln: University of Nebraska Press, 2004), 5. 

  3. For more consult Malinda Lowery’s Lumbee Indians in the Jim Crow South: Race, Identity, and the Making of a Nation (Chapel Hill: University of North Carolina Press, 2010). 

  4. The full discussion draft is available at http://www.bia.gov/cs/groups/public/documents/text/idc1-022123.pdf 

  5. The segment was updated on the 60 Minutes 2 during the early 2000s. 

  6. Brett Fromson’s Hitting the Jackpot: The Inside Story of The Richest Indian Tribe in History and Kim Eisler’s Revenge of the Pequots: How a Small Native American Tribe Created the World’s Most Profitable Casino follow similar paths. 

  7. Cramer, Cash, Color, and Colonialism, 149-150. I’ve attempted to find a photograph/copy of the cartoon but have been unable to do so in cursory attempts. If anyone has a copy please let me know. 

  8. Rick Green at the Hartford Courant provided some more details in his report, available at http://articles.courant.com/2013-07-06/news/hc-indian-tribes-recognition-column-green-20130706_1_schaghticokes-easterns-golden-hill-paugussetts. 

  9. Riverside County outlawed card gaming and attempted to seize card games under Public Law 280. However, because California allowed the gaming for charitable purposes (and because it had a state lottery), the court ruled the state had no authority to enforce laws on the reservations. 

  10. Sorry the the typos and grammar errors that I know undoubtedly riddle that paper.