Winter 2004

Federal Recognition Update:
Bureau of Indian Affairs Recognizes Schaghticoke Tribal Nation

On January 29, 2004, the Bureau of Indian Affairs issued its "Final Determination" acknowledging the Schaghticoke Tribal Nation. That Determination reversed a prior Proposed Finding issued in December 2003 that the Schaghticoke Tribal Nation had not met two of the seven criteria required for federal recognition. (See Volume 6, Issue 2 of the Quinnehtukqut Legal News.) The first criterion was a requirement to show that most of the Tribe's members are a community that had existed from historical times until the present; the second was to show that the Tribe had had political influence or authority over its members since historical times. The Bureau's 2004 Final Determination was based on both new evidence submitted to the Bureau after the Proposed Finding was issued and a reinterpretation of existing evidence. The Final Determination becomes effective on May 5, 2004, unless a request for reconsideration is granted. (The Notice of the Decision published in the Federal Register of February 5, 2004 notes, however, that on-going negotiations in current litigation may modify or eliminate the possibility of reconsideration.)

The specific areas noted in the Proposed Finding where the Bureau had found holes in the Schaghticoke Petition were the following:

  1. There was insufficient evidence to find that a community existed between1940 and 1967; and
  2. There was insufficient evidence to find that the Tribe had exercised political influence within the group from 1801-1875, from 1885-1949 and from1949-1967.

The Proposed Findings also stated that

The continuous State relationship with a reservation is not evidence sufficient in itself to meet the criteria and is not a substitute for direct evidence at a given point in time or over a period of time. Instead this longstanding State relationship and reservation are additional evidence which, when added to the existing evidence, demonstrates that the criteria are met at specific periods in time.

This last statement was consistent with what the Bureau had ruled in its Final Decision Acknowledging the Petition for Federal Recognition filed by the Eastern Pequots. (See Volume 6, Issue 1 of the Quinnehtukqut Legal News for a discussion of that decision.)

The Final Decision in this case, however, ruled that the Bureau would reevaluate its conclusion about the evidentiary value of a continuous State relationship with a Tribe. In addition, the Bureau found that adequate new evidence had been supplied to fill in some of the evidentiary gaps. According to the February 5 Notice in the Federal Register:

The Department's reevaluated position is that the historically continuous existence of a community recognized throughout its history as a political community by the State and occupying a distinct territory set aside by the State (the reservation), provides sufficient evidence for continuity of political influence within the community, even though direct evidence of political influence is almost absent for two historical time periods. This conclusion applies only because it has been demonstrated that the Schaghticoke have existed continuously as a community, within the meaning of criterion 83.7(b), and because of the specific nature of their continuous relationship with the State. Further, political influence was demonstrated by direct evidence for very substantial historical periods before and after the two historical periods. Finally, there is no evidence to indicate that the tribe ceased to exist as a political entity during these periods.

The Bureau also concluded that while the evidence remained slim to conclude that there was political influence within the Tribe during certain time periods, "[t]here was no evidence to suggest that the political influence did not exist," and, further, that

Community, when it is demonstrated to exist at more than a minimal level, which has been done here, provides supporting evidence for direct evidence of political processes.