The Day on 05 December 2004
The Politics Of Greed Drive BIA Process
Since receiving a preliminary determination for recognition by the Bureau of Indian Affairs over two years ago, the Eastern Pequot Indian group has been awaiting word from the Interior Board of Indian Appeals on whether it gets to keep the prize. The state of Connecticut appealed to the Interior Board of Indian Appeals, claiming the BIA reduced its rules to a sham when it took two rival Eastern Pequot factions that previously considered each other illegitimate; merged them together; and declared them a legitimate tribe with a green light to build a casino. As decision day on the state's appeal process goes forward, the Eastern Pequots' leader, Marcia Flowers, is campaigning to convince the public and the media that acknowledgment is "inevitable."
In several recent press reports, Flowers has insisted that:
- Their petition is the strongest one ever filed.
- A new casino will be opened in a community that welcomes one.
- The tribal members are actively engaged in a wide variety of tribal activities.
In all that spin there is little reality. For starters, if the Eastern Pequot groups' petitions were so strong, the BIA wouldn't have had to jury-rig them together to compensate for the inability of either one to hold up on its own. Nonetheless, it is understandable that Flowers and the Easterns, along with their wealthy financial backers, would view the outcome of their push for recognition and a casino as inevitable. After all, they are accustomed to dealing with the BIA, where rules and regulations governing acknowledgment are treated more like pesky detours en route to a pre-determined casino destination.
But while the BIA has been finding ways to navigate the Eastern Pequots and other petitioning groups from Connecticut, such as the Schaghticoke Tribal Nation, around the rules, our state has passed a law that makes it illegal for any newly-created tribes -- or any other entity, for that matter -- to build a third casino anywhere in the state. Fortunately, Connecticut actually enforces its laws. Unless the Easterns or some other group successfully mounts a court challenge to the repeal of Connecticut's Las Vegas Nights law, there will be no more casinos.
But right now the Easterns haven't even solidified the federal tribal status needed to go to court to challenge Connecticut's law. A review of the problems plaguing the Eastern Pequots' petition suggests they may never get there.
First, the Eastern Pequot petition is, in fact, one of the weakest ever to have reached this far with a
preliminary decision to grant acknowledgment. If the Interior Board of Indian Appeals doesn't overturn the BIA's decision, the legal challenge will proceed up the administrative appeals ladder and ultimately to the courts if necessary.
While these appeals slog on, the cost to sustain them is relentless. For years money was not an obstacle, as both Pequot groups had been handsomely subsidized by two groups of financiers desiring to build the state's third casino.
Now those two groups, led respectively by Donald Drumpf and developer David Rosow, are fighting a $10 million court dispute over who has the right to back the consolidated Eastern Pequots. This is like two pirates fighting each other over the gold. The notion that all is well in Eastern Pequot land is a farce, as the ugly underbelly of this business has been oozing out in court filings and financial disclosure statements.
Second, the BIA and its hopelessly flawed recognition process are now under investigation by the U.S. House Government Reform Committee, and the Eastern Pequots' petition bid is at the center of the probe. Earlier this year, hearings spearheaded by Congressman Chris Shays exposed a simple question: if the Easterns' petition is so strong, why did the group require millions and millions of dollars to convince the BIA and employ a high-powered lobbyist with direct access to the White House for $500,000 to help make their case?
The spectacle of non-Indian millionaires fighting in court over who deserves to profit from this acknowledgment petition only confirms how morally bankrupt the BIA's acknowledgment process has become. Yet the BIA has set a precedent by merging the two Eastern Pequot groups into a single tribe. Last year the Schaghticoke Tribal Nation, which also had a rival faction bidding for recognition, unsuccessfully attempted to co-op nearly 50 members from the rival faction onto its membership rolls. When that tactic failed, the BIA bent other rules to grant a favorable decision to the Schaghticokes.
Now, this same tactic appears to be part of a wider BIA strategy to recognize tribes in the northeast. Just two weeks ago Connecticut attorney general Richard Blumenthal and I brought to light a suspicious letter that surfaced in the petition filed by one of the Nipmuc groups seeking recognition.
Like the Easterns and the Schaghticoke, the Nipmuc are divided into two rival factions that have independently filed petitions for acknowledgment. A letter written on Interior Department letterhead advises one of the groups to "infiltrate" the other group in order to overcome fatal deficiencies in the acknowledgment petition. Members of Congress led by Rob Simmons have asked Interior Secretary Gale Norton to determine who wrote the letter.
The bias against states and towns in the recognition process becomes more apparent with every new BIA decision, and the problems with the recent Schaghticoke and Nipmuc decisions only confirm that the acknowledgment process is corrupt. Indeed, the process is so flawed that the First Circuit Court of Appeals has already indicated that a violation of law occurred in the manner in which BIA treated interested parties such as the state and the towns. If the Eastern Pequots were to get the acknowledgment result Ms. Flowers hopes for, the "inevitable" result of that decision will further litigation that stands a good chance of reopening the process for what we hope is a full and fair review.
For now, the only thing inevitable in all this mess is that the Easterns appetite for a casino is insatiable. This greed is the instrument that is forcing into the light the problems with so-called Indian gaming and tribal acknowledgment. It is hoped that meaningful reform is just around the corner.