[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1104 Introduced in House (IH)]






109th CONGRESS
  1st Session
                                H. R. 1104

To repeal the Federal acknowledgment of the Schaghticoke Tribal Nation.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             March 3, 2005

 Mrs. Johnson of Connecticut (for herself, Mr. Shays, and Mr. Simmons) 
 introduced the following bill; which was referred to the Committee on 
                               Resources

_______________________________________________________________________

                                 A BILL


 
To repeal the Federal acknowledgment of the Schaghticoke Tribal Nation.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

     This Act may be cited as the ``Schaghticoke Acknowledgment Repeal 
Act of 2005''.

SEC. 2. REPEAL OF THE FEDERAL ACKNOWLEDGMENT OF THE SCHAGHTICOKE TRIBAL 
              NATION.

    (a) Findings.--Congress finds the following:
            (1) The Bureau of Indian Affairs should acknowledge 
        petitioning groups as Indian tribes within the meaning of 
        Federal law only when petitioning groups fully, faithfully, and 
        objectively satisfy each of the 7 mandatory acknowledgment 
        criteria under section 83.7 of title 25, Code of Federal 
        Regulations.
            (2) The Bureau of Indian Affairs issued a Proposed Finding, 
        a preliminary decision, dated December 2, 2002, and published 
        in the Federal Register on December 11, 2002 (67 Fed. Reg. 
        76184), that declined to acknowledge the Schaghticoke Tribal 
        Nation as an Indian tribe within the meaning of Federal law 
        because the tribe did not satisfy each of the 7 mandatory 
        criteria under section 83.7 of title 25, Code of Federal 
        Regulations, more particularly:
                    (A) The Proposed Finding concluded that the 
                Schaghticoke Tribal Nation did not satisfy criterion 
                83.7(b), the demonstration of a continuous community 
                from the first sustained historical contact to the 
                present, because there was ``insufficient evidence'' to 
                demonstrate that a community existed for 36 years from 
                1940 to 1967 and from 1996 to the present.
                    (B) The Proposed Finding concluded that the 
                Schaghticoke Tribal Nation did not satisfy criterion 
                83.7(c), the demonstration of continuous political 
                authority and influence within the community, because 
                there was ``insufficient evidence'' or ``no specific 
                evidence'' or both to demonstrate that political 
                authority and influence was exercised within the 
                community for 165 years from 1801 to 1875, 1885 to 
                1967, and 1996 to the present.
                    (C) The Proposed Finding concluded further 
                concerning criterion 83.7(c) that the State of 
                Connecticut's continuous relationship with individuals 
                claiming to be Schaghticoke and living on land set 
                aside for them as a reservation did not provide 
                additional evidence during those periods when there was 
                an absence of specific evidence of the exercise of 
                political influence within the group within the meaning 
                of the acknowledgment regulations.
                    (D) The Proposed Finding raised concerns that the 
                Schaghticoke Tribal Nation's membership list excluded 
                prominent individuals who had been ousted from or 
                refused to be a part of the Schaghticoke Tribal Nation 
                petition, including members of the rival Schaghticoke 
                Indian Tribe, members of the Coggswell family, and 
                former Chief Irving Harris. In addition, the membership 
                list included newly recruited Joseph D. Kilson 
                descendents who had not had any connection with the 
                Schaghticoke group throughout the 20th century.
            (3) After further public comment and submissions by the 
        petitioner and interested parties, the Bureau of Indian Affairs 
        issued a Final Determination, dated January 29, 2004 and 
        published in the Federal Register on February 5, 2004 (69 Fed. 
        Reg. 5570), that acknowledged the Schaghticoke Tribal Nation as 
        an Indian tribe within the meaning of Federal law.
            (4) The Final Determination reached this positive result 
        only through the following:
                    (A) Explicit, premeditated manipulation of both the 
                evidence and established acknowledgment standards, as 
                evidenced by the following:
                            (i) In a briefing paper dated January 12, 
                        2004, prepared by the Office of Federal 
                        Acknowledgment and submitted to Principal 
                        Deputy Assistant Secretary-Indian Affairs 
                        Aurene Martin regarding the forthcoming Final 
                        Determination, the Office of Federal 
                        Acknowledgment requested guidance from the 
                        Principal Deputy Assistant Secretary-Indian 
                        Affairs on whether the Schaghticoke Tribal 
                        Nation should be ``acknowledged even though 
                        evidence of political influence and authority 
                        is absent or insufficient for two substantial 
                        historical periods, and if so, on what 
                        grounds?''.
                            (ii) In the briefing paper, Office of 
                        Federal Acknowledgment staff recommended, and 
                        the Principal Deputy Assistant Secretary-Indian 
                        Affairs endorsed, an analytic approach that 
                        explicitly discarded prior agency precedent and 
                        regulations governing the acknowledgment 
                        process to overcome the absence and 
                        insufficiency of evidence to demonstrate 
                        continuous political influence and authority, 
                        as the regulations require.
                            (iii) This approach, according to the 
                        briefing paper, ``would require a change in how 
                        continuous state recognition with a reservation 
                        was treated as evidence.''.
                            (iv) The briefing paper also acknowledged 
                        the possibility of declining acknowledgment of 
                        the Schaghticoke Tribal Nation, saying that 
                        option ``maintains the current interpretations 
                        of the regulations and established precedents 
                        concerning how continuous tribal existence is 
                        demonstrated.''.
                    (B) Ignoring agency admissions that ``insufficient 
                direct evidence'' or ``little or no direct evidence'' 
                exists to satisfy the political authority criterion for 
                a period of 118 years, as evidenced by the following:
                            (i) The Bureau of Indian Affairs admits in 
                        the Final Determination that ``there is little 
                        or no direct evidence to demonstrate political 
                        influence within the Schaghticoke between 1892 
                        and 1936,'' and elsewhere that ``there is 
                        insufficient direct evidence to demonstrate 
                        criterion 83.7 (c) between 1892 and 1936.''.
                            (ii) The Bureau of Indian Affairs admits in 
                        the final determination that ``there remains 
                        little direct evidence concerning political 
                        authority or influence among the schaghticoke 
                        for this time period [1801-1875]''.
                            (iii) The Bureau of Indian Affairs admits 
                        in a January 12, 2004, briefing paper prepared 
                        for the Principal Deputy Assistant Secretary-
                        Indian Affairs that ``evidence of political 
                        influence and authority [within the 
                        Schaghticoke Tribal Nation] is absent or 
                        insufficient for two substantial historical 
                        periods.''
                    (C) An arbitrary reevaluation and erroneous 
                interpretation of the State's relationship with the 
                Schaghticoke, where the Bureau of Indian Affairs 
                overturned longstanding judicial precedent and 
                interpretation that it repeatedly relied upon in prior 
                acknowledgment decisions involving New England Indian 
                groups, as evidenced by the following:
                            (i) The Final Determination acknowledged 
                        that in using the State's relationship with the 
                        group as evidence to satisfy the political 
                        community and authority criteria, the Bureau of 
                        Indian Affairs was reversing its holding in the 
                        Proposed Finding, which stated that ``a 
                        continuous state relationship with a 
                        reservation did not provide additional evidence 
                        during those periods when there was an absence 
                        of specific evidence of the exercise of 
                        political influence within the group within the 
                        meaning of the acknowledgment regulations.''.
                            (ii) To reach the positive result in the 
                        Final Determination, the Bureau of Indian 
                        Affairs erroneously equated the fact that the 
                        State of Connecticut had set aside tracts of 
                        land where individuals claiming descent from a 
                        tribe that existed in colonial times could 
                        live, including providing funds and an overseer 
                        for these individuals, with the act of 
                        recognizing a sovereign entity that has existed 
                        as a distinct political community as it is 
                        understood under Federal law.
                            (iii) The Bureau of Indian Affairs used 
                        this faulty analysis to fill gaps where, by the 
                        agency's admission, ``insufficient'' or 
                        ``little or no direct'' evidence existed to 
                        demonstrate continuous community and political 
                        authority.
                            (iv) The use of the State's relationship 
                        with the Schaghticoke group as evidence of 
                        continuous political authority specifically 
                        subverts the intent of the regulations, since 
                        the Bureau of Indian Affairs previously 
                        considered and rejected the use of such 
                        arrangements as evidence because it merely 
                        emphasized Indian ancestry, not the existence 
                        of tribal political authority.
                            (v) In the Final Determination 
                        acknowledging the Mohegan tribe in Connecticut, 
                        the Bureau of Indian Affairs properly 
                        interpreted State recognition, declaring that 
                        ``State recognition is one form of evidence 
                        that a group meets criterion (a), but it is not 
                        grounds for automatically considering a group 
                        to be entitled to Federal recognition.''. In 
                        addition, the Bureau of Indian Affairs adhered 
                        to this precedent and interpretation of a State 
                        relationship in its proposed findings and final 
                        determinations concerning the Narrangansett 
                        tribe in Rhode Island, the Gay Head Wampanoag 
                        tribe in Massachusetts, and the Historic 
                        Eastern Pequot and the Golden Hill Paugussett 
                        tribes in Connecticut.
                            (vi) Without the Bureau of Indian Affairs' 
                        use of this erroneous interpretation of the 
                        State's relationship with the Schaghticoke 
                        group to substitute for ``insufficient'' or 
                        absent evidence necessary to satisfy the 
                        continuous community and political authority 
                        criteria, the Schaghticoke Tribal Nation would 
                        not have satisfied these mandatory criteria and 
                        would have been denied acknowledgment.
                    (D) Unprecedented and inaccurate methods to 
                calculate tribal marriage rates, without which the 
                Schaghticoke Tribal Nation would not have reached the 
                50 percent intra-marriage rate threshold and 
                consequently would not have satisfied the criteria for 
                political authority for a 74 year period from 1801 to 
                1875, as evidenced by the following:
                            (i) Under section 83.7(c)(3) of title 25, 
                        Code of Federal Regulations, (commonly known as 
                        the so-called ``carry-over'' provision), in the 
                        absence of direct evidence, a petitioner can 
                        satisfy the political authority criterion for a 
                        particular period if it demonstrates one of 
                        that ``at least 50 percent of the marriages in 
                        the group are between members of the group,'' a 
                        threshold that demonstrates community for a 
                        particular period under section 83.7(b)(2)(ii) 
                        of title 25, Code of Federal Regulations.
                            (ii) Because the Bureau of Indian Affairs 
                        admits in the Final Determination that ``there 
                        remains little direct evidence concerning 
                        political authority or influence among the 
                        Schaghticoke for this time period [1801 to 
                        1875],'' the agency invoked the carry-over 
                        provision to demonstrate political authority 
                        for this period because it calculated that more 
                        than 50 percent of the marriages in the group 
                        were between members of the group.
                            (iii) In a filing before the Interior Board 
                        of Indian Appeals, dated December 2, 2004, the 
                        Office of the Solicitor, Bureau of Indian 
                        Affairs, admitted that the Final Determination 
                        used a methodology in calculating and analyzing 
                        marriage rates that ``is not consistent with 
                        prior precedent in calculating rates of 
                        marriages under 83.7(b)(2)(ii) and provides no 
                        explanation for the inconsistency.''.
                            (iv) The Office of the Solicitor states 
                        that ``previous acknowledgment decisions 
                        interpret 83.7(b)(2)(ii) to require that 50 
                        percent of the marriages are between members of 
                        the group. In contrast, the Summary on 
                        [Schaghticoke Tribal Nation] inadvertently 
                        relied on the number of members of the group 
                        who married other members, which results in a 
                        higher count.''.
                            (v) The Office of the Solicitor also 
                        concludes that mathematical errors were made in 
                        tabulating marriage rates in the Final 
                        Determination that when corrected reduces the 
                        rate below 50 percent, regardless whether 
                        ``marriages'' as is customary, or ``members of 
                        the group who marry other members,'' which is 
                        unprecedented, is counted.
                            (vi) Since the Schaghticoke Tribal Nation 
                        marriage rates do not meet the 50 percent 
                        threshold, the carry-over provision is rendered 
                        inoperative.
                            (vii) Without the carry-over provision to 
                        substitute for insufficient evidence to 
                        demonstrate political authority for the time 
                        period from 1801 to 1875, the political 
                        authority criterion is not satisfied, and the 
                        Bureau of Indian Affairs should have declined 
                        Federal acknowledgment in the Final 
                        Determination.
                            (viii) The Office of the Solicitor further 
                        advises that during the Interior Board of 
                        Indian Appeals request for reconsideration 
                        currently under way, the Final Determination 
                        ``should not be affirmed on these grounds 
                        absent explanation or new evidence.''.
                    (E) A fraudulent membership list for the 
                Schaghticoke Tribal Nation, without which the 
                Schaghticoke group could not be acknowledged--a result 
                the Office of Federal Acknowledgment within the Bureau 
                of Indian Affairs calls ``undesirable'' in internal 
                briefing papers, as evidenced by the following:
                            (i) The Schaghticoke group has experienced 
                        intense factional conflict for many years, with 
                        the resulting split in the early 1990s between 
                        the Schaghticoke Tribal Nation and the 
                        Schaghticoke Indian Tribe into two distinct 
                        groups with district communities and political 
                        processes.
                            (ii) The January 12, 2004, briefing paper 
                        prepared by Office of Federal Acknowledgment 
                        staff for the Principal Deputy Assistant 
                        Secretary-Indian Affairs states the 
                        ``Schaghticoke Tribal Nation membership list 
                        did not include a substantial portion of the 
                        actual social and political community.''.
                            (iii) The briefing paper concludes that 
                        ``the activities of these individuals were an 
                        essential part of the evidence for the 
                        [Proposed Findings] conclusion that the 
                        [Schaghticoke Tribal Nation] met criterion 
                        83.7(b) [community] and 83.7(c) [political 
                        authority] from 1967 to 1996 and their absence 
                        was one of the reasons the [Proposed Finding] 
                        concluded these criteria were not met from 1996 
                        to the present. After 1996, these individuals 
                        either declined to reenroll as the leadership 
                        required of all members, or subsequently 
                        relinquished membership, because of strong 
                        political difference with the current 
                        [Schaghticoke Tribal Nation] administration''.
                             (iv) In response to concerns raised in the 
                        Proposed Finding, the Schaghticoke Tribal 
                        Nation unsuccessfully attempted to purge the 
                        Kilson descendents from the membership list and 
                        to persuade prominent Schaghticokes, including 
                        Schaghticoke Indian Tribe members, the 
                        Coggswells and Irving Harris, to rejoin.
                            (v) On September 27, 2003, the day before 
                        the end of the Schaghticoke Tribal Nation's 
                        comment period prior to the issuance of the 
                        Final Determination, 15 Schaghticoke Indian 
                        Tribe members applied for and were granted 
                        membership in the Schaghticoke Tribal Nation. 
                        Nine of those 15 signed a letter on September 
                        29, 2003, however, stating that they were not 
                        Schaghticoke Tribal Nation members, had no 
                        intention of becoming members, and that `` 
                        [their] signatures were obtained by fraud''.
                            (vi) In the briefing paper, Office of 
                        Federal Acknowledgment staff expresses 
                        disappointment that these irregularities could 
                        undermine the Schaghticoke Tribal Nation's 
                        goals, saying ``the current status of a long-
                        term pattern of factional conflict may either 
                        have the undesirable consequence of negatively 
                        determining Schaghticoke's tribal status. . 
                        .''.
            (5) Congress acknowledges that two noted Native American 
        anthropologists retained to advocate for the Schaghticoke 
        Tribal Nation concluded after exhaustive, years-long research 
        that the group did not and could not establish continuous 
        community and political authority as required by the 
        acknowledgment regulations, more particularly:
                    (A) Dr. William Starna, a professor of anthropology 
                and expert in tribal acknowledgment at the State 
                University of New York at Oneonta, who has worked on 
                behalf of tribal petitioners Gay Head Wampanoag, Golden 
                Hill Paugussett, and Eastern Pequot in addition to the 
                Schaghticoke Tribal Nation, concluded in two separate 
                reports, in 1989 and again in 1993, that the 
                Schaghticoke Tribal Nation could not satisfy either the 
                continuous community or political authority and 
                influence criteria.
                    (B) Dr. Ann McMullen, a professor of anthropology 
                and expert in tribal acknowledgment at Brown 
                University, who has worked on behalf of tribal 
                petitioners Mashpee and Paucatuck Eastern Pequot, 
                conducted further research at the request of the 
                Schaghticoke Tribal Nation. In a 1999, report Dr. 
                McMullen affirmed Dr. Starna's s conclusions, saying 
                that ``too much still rests on Schaghticoke as a piece 
                of Indian land occasionally occupied by Indians and not 
                the focal point for a larger dispersed tribe''.
            (6) Paragraph (4) demonstrates that the Schaghticoke Tribal 
        Nation does not satisfy each of the seven mandatory criteria 
        for acknowledgment under section 83.7 of title 25, Code of 
        Federal Regulations. If further demonstrates willful 
        manipulation of both the acknowledgment regulations and 
        existing agency precedent by the Bureau of Indian Affairs.
            (7) For the reasons described in paragraphs (4) and (6), 
        the Final Determination acknowledging the Schaghticoke Tribal 
        Nation as an Indian tribe within the meaning of Federal law is 
        erroneous and unlawful.
            (8) Congress cannot allow the erroneous and unlawful 
        decision of the Bureau of Indian Affairs to acknowledge the 
        Schaghticoke Tribal Nation as an Indian tribe within the 
        meaning of Federal law to stand because of the significant, 
        harmful, and irreversible effects it would have on neighboring 
        communities, more particularly:
                    (A) A sovereign, federally acknowledged Indian 
                tribe is exempted from a broad range of State laws and 
                regulations, including State and local taxation.
                    (B) A sovereign, federally acknowledged Indian 
                tribe is granted rights under Federal law to engage in 
                casino-style gaming under the Indian Gaming Regulatory 
                Act, and the construction and operation of a Las Vegas-
                style casino in Western Connecticut would place 
                unbearable burdens on municipalities, on local tax 
                bases and taxpayers, and on an aging transportation 
                infrastructure that could not tolerate the volume of 
                traffic such a facility would create.
                    (C) A sovereign, federally acknowledged Indian 
                tribe has standing in Federal court to pursue land 
                claims litigation on property under the Federal laws 
                commonly known as the ``Non-Intercourse Act'', claims 
                that threaten landowners' property rights, cloud title 
                in widespread areas, and prevent the sale of real 
                property.
    (b) Purposes.--The purposes of the Act are as follows:
            (1) To repeal the Bureau of Indian Affairs' acknowledgment 
        of the Schaghticoke Tribal Nation as an Indian tribe within the 
        meaning of Federal law.
            (2) To correct the unlawful and erroneous decision by the 
        Bureau of Indian Affairs, in violation of Federal regulations 
        and contrary to longstanding agency precedent, to acknowledge 
        the Schaghticoke Tribal Nation as an Indian tribe within the 
        meaning of Federal law.
            (3) To protect the taxpayers and municipalities of the 
        State of Connecticut from the undue burdens and violations of 
        sovereignty described in subsection (a)(8).
            (4) To affirm the 7 mandatory acknowledgment criteria and 
        prevent a precedent setting decision that relaxes them for 
        northeastern groups.
    (c) Definitions.--For the purposes of this Act, the following 
definitions apply:--
            (1) Schaghticoke tribal nation.--The term ``Schaghticoke 
        Tribal Nation'' means the Schaghticoke Tribal Nation, a 
        federally recognized Indian tribe based at 33 Elizabeth Street, 
        4th Floor, Derby, Connecticut, 06148.
            (2) Final determination.--The term ``Final Determination'' 
        means the decision document containing an administrative 
        decision made pursuant to section 83 et seq. of title 25, Code 
        of Federal Regulations by the Office of Federal Acknowledgment, 
        Bureau of Indian Affairs, dated January 29, 2004, affirmed by 
        Aurene M. Martin, Principal Deputy Assistant Secretary-Indian 
        Affairs, published in the Federal Register on February 5, 2004 
        (69 Fed. Reg. 5570), that acknowledged the Schaghticoke Tribal 
        Nation as an Indian tribe within the meaning of Federal law.
            (3) Request for reconsideration.--The term ``Request for 
        Reconsideration'' means the administrative appeal of the Final 
        Determination, initiated by the Attorney General of the State 
        of Connecticut on behalf of the State and Interested Parties 
        pursuant to section 83.11 of title 25, Code of Federal 
        Regulations, In re Federal Acknowledgment of the Schaghticoke 
        Tribal Nation, Docket Nos. IBIA 04-83-A, IBIA 04-94-A, IBIA 04-
        95-A, IBIA 04-96-A, and IBIA 04-97-A.
    (d) Repeal of the Federal Acknowledgment of the Schaghticoke Tribal 
Nation.--
            (1) The Schaghticoke Tribal Nation is not an Indian tribe 
        within the meaning of Federal law and does not maintain a 
        government-to-government relationship with the United States.
            (2) The Final Determination acknowledging the Schaghticoke 
        Tribal Nation as an Indian tribe within the meaning of Federal 
        law, maintaining a government-to-government relationship with 
        the United States, is repealed.
            (3) The outcome of the Request for Reconsideration shall 
        have no effect on this Act.
                                 <all>