Federal Proposal Could Affect Conn. Tribes, Lawyers
Attorney Jeffrey B. Sienkiewicz has been fending off land claims by the Schaghticoke Indian Tribe since the early 1980s.
A little over a year ago, the former Kent town attorney who now has a private practice in New Milford thought he was finally done facing off against the tribe that has occupied a 400-acre reservation overlooking the Housatonic River since the 1700s. "But now, it looks like they're going to get another bite at the apple," he said.
Connecticut currently has two federally recognized tribes, the Mashantucket Pequot Tribal Nation and the Mohegan Tribe, which currently run the nation's two largest Indian-owned casinos — Foxwoods and Mohegan Sun.
A new proposal that would make it easier for tribes to gain federal recognition could add three other Connecticut tribes to the list: the Schaghticokes of Kent; the Golden Hill Paugussetts of Trumbull and Colchester; and the Eastern Pequots of North Stonington. That has some lawyers who protect the intersts of towns, including Sienkiewicz, concerned about renewed land use claims. And possibly, plans for new casinos.
"The change to the federal recognition system for tribes they are talking about making would really gut the system," Sienkiewicz said. If that recognition were granted, "litigation that has been going on for years would be reopened;" he said, rendering some of the legal work that has been done meaningless.
The Schaghticoke Tribe was granted its reservation by the General Assembly of the Colony of Connecticut in 1736, and the land it occupies was laid out by a group including a signor of the Declaration of Independence, Roger Sherman. Starting in 1975, using a revolving door of lawyers and firms, the tribe has made several legal efforts to expand its reservation.
Various aspects of the case have gone before state and federal courts, and before the federal Bureau of Indian Affairs. The bottom line is that the tribe, for the most part, has been told it does not meet the criteria to be federally recognized and that its land claims are invalid. (Federal recognition was briefly granted in 2004, but rescinded by the Bureau of Indian Affairs in 2005).
Last year, the tribe lost what looked likes its final bid for federal recognition, which carries with it some housing, medical and education benefits for tribal members. As a result, a bitter fight over land claims the tribe had brought against Kent, the Connecticut Light & Power company, and Kent School looked to be finished.
"I have piles of paper related to this case in my office," said Sienkiewicz, who started representing Kent in the land claim case as its attorney in 1982, and continued after he entered private practice several years ago. "It's an interesting case, but it's been going on for a very long time."
He continued: "I'm watching this closely, and I expect to file some comments on behalf of the Town of Kent in opposition of the proposed regulations. Just imagine the amount of money and effort the land owners and state have spent fighting these land claims."
Sienkiewicz said he's not opposed to tribes gaining federal recognition. But he is opposed to the standards being changed. "If we felt the Schaghticoke's met the standards for federal recognition, we'd be the first to say so," he said. "And the rules are, there has to be a consistent political organization going back to Colonial times. It can't just be a bunch of guys sitting around a coffee table who say, 'We want to be a tribe.'"
It's been the inability of the Schaghticokes to document that they have had an unbroken political and social history since the 1700s that has thwarted their claims for federal recognition. But the proposed change in federal guidelines suggested by the Bureau of Indian Affairs could reignite the efforts of the Schaghticokes, Golden Hill Paugussetts and the Eastern Pequots.
Among the most significant changes in the latest proposal: a tribe would have to show only that it has been in existence since 1934, rather than document ongoing political organization since "first contact with European settlers." Federal recognition could also lead tribe to push their legal argument for land claims. That reality has piqued the interest of other lawyers in the state. Especially those who have worked for or against the tribes in the past.
"Just think about three more casinos in Connecticut," said David Elliott, a Day Pitney partner who represents the Kent School, which sits on land that the Schaghticokes are trying to claim. "This could have devastating consequences across the state." For instances, if the tribes gain recognition, Elliott said, "massive land claims could cast a shadow over land titles for the better part of the state. Selling property would become far more cumbersome as a result."
The Schaghticoke Tribe is represented by Benjamin H. Green, of Zeichner, Ellman & Krause in Greenwich. Green did not respond to messages left last week seeking comment. But others in favor of the draft proposal to change the federal recognition rules say the intent of the Bureau of Indian Affairs is to create a process that is more "fair, efficient and transparent."
Judith Shapiro, an attorney in Washington, D.C. who provided the Mohegan Tribe with legal advice when it was establishing its casino in 1996, said the current standards put unfair burdens on tribes to trace their history over 200 years.
Some of these tribes have lost out because records were lost or burned over hundreds of years, and any tribe that was still together by 1934 had overcome histories of mistreatment and pressure to blend in with mainstream society, Shapiro said.
But opponents of the rule see it as unfairly lowering the bar. "The public has until September 25 to make comments about the rule changes, and of course this is an intensely political issue," Elliott said. "This is being pushed by political influences in Washington, and I think it needs to be addressed by Connecticut politicians."
Connecticut U.S. Senator Richard Blumenthal said in a prepared statement that the state's congressional delegation is united against changes that he could have far-reaching ramifications for several towns and the entire state. "Our hope is we can dissuade officials from proceeding with a regulatory step that would be very misguided because it would essentially eviscerate and eliminate key criteria," Blumenthal said.
Alan Russell, the leader of the 100-member Schaghticoke Tribe, is fully aware that federal recognition has brought lucrative gaming money to members of the Mashantucket Pequot and Mohegan Tribes.
Russell said his 100-member tribe wants its own casino, but not on its 400-acre reservation ringed by the Appalachian Trail. A business consultant for the tribe, Bill Buchanan, said it has spoken with potential investors and, assuming it wins recognition, would like to swap some land, team up with one of Connecticut's bigger cities, and perhaps build a casino along a highway.
A rival faction of the tribe, the Schaghticoke Tribal Nation, is hoping the new rules breathe life into its own parallel bid for recognition.The larger STN had the backing of Subway founder Fred DeLuca, who was interested in building a casino in Bridgeport, when it briefly won recognition in 2004.
Nicholas Mullane, the first selectman in North Stonington, Conn., questions whether a Connecticut tribe whose members have played in the local Little League and joined local churches should have the same standing as other U.S. tribes that have remained distinct communities. "It's not like somebody in the West where you have a huge reservation and a government and they meet regularly," said Mullane, who is preparing to fight any renewed recognition bid by the Eastern Pequots, who have a small, state-issued reservation in town.
The Golden Hill Paugussett Tribe has recently filed a new petition for federal status. Samuel Dixon, a New Haven lawyer, filed the petition for recognition. He acknowledged the tribe would like to open a casino.
Michael D. O'Connell, a principal with O'Connell, Attmore & Morris in Hartford, has a land use and Indian Law practice and has served as general counsel to the Golden Hill Paugussetts in past recognition efforts. His work on behalf of other Indian tribes has most recently taken him out West, to North Dakota, where tribes are seeking approval to drill for oil.
Since the last bid for the three tribes in Connecticut to fell short last year, "things seemed quiet." he said.
But with the new proposal to change the rules for designation, he planned on calling Chief Quiet Hawk of the Golden Hill Paugussetts to see what, if any further action, they might take. "I am very interested in what these changes might bring," he said.•