Shinnecocks still have to wait for recognition

Despite judge's ruling recognizing tribe, federal agency won't be quick to grant legal status

BY BILL BLEYER
STAFF WRITER
January 9, 2006

Euphoria swept over the Shinnecock Reservation in Southampton in November after a judge ruled that the residents of the 800-acre waterfront enclave were a federally recognized tribe.

With that ruling, tribal members hoped the pendulum of history had finally swung back in their direction, further legitimizing their legal status as Long Island's first residents and, possibly, paving the way for construction of a casino in Hampton Bays and the pursuit of a sweeping land claim.

Two months later, the future looks more like the past for the Shinnecocks after the U.S. Department of the Interior insisted in a letter made public last week that it was not bound by the judge's decision.

Now, experts on Native American law say, unless the Shinnecocks come up with a new legal tactic, they will be forced to continue waiting for the protracted Bureau of Indian Affairs recognition process they began in 1978 to run its course - which could take another four or five years, BIA officials say.

Before the BIA can rule on the Shinnecocks' application, it must first review the petitions of 17 other tribes from around the country that are in the pipeline in front of them.

While saying they are consulting with tribal attorneys, Shinnecock leaders say they will win in the end.

"We anticipated this 2 1/2 years ago," tribal board of trustees chairman Randy King said Friday, referring to when the tribe filed its lawsuit. "We are very confident that we will eventually be considered a federally recognized Indian tribe."

The roller coaster of emotions on the reservation began when U.S. District Judge Thomas Platt ruled that the Shinnecocks were exactly what they said they were - Indians in a recognized tribe living on ancestral land.

Then, last month, James Cason, associate deputy interior secretary, wrote to Sen. Charles Schumer (D-N.Y.) that the agency was not bound by the ruling because it was not a party to the court action that resulted in Platt's ruling.

An Interior Department legal memo given to Schumer stated that, "The power to establish a government relationship with Indian tribes lies with the political branches of the government: Congress, through statutory recognition, and the Executive branch through regulatory acknowledgment."

The tribe can expect no support in Congress because the proposed casino in Hampton Bays is staunchly opposed by Rep. Tim Bishop (D-Southampton), Schumer and Sen. Hillary Rodham Clinton (D-N.Y.).

Power play

In a statement issued in response to the Interior Department's letter, the tribal board of trustees said, "Platt acknowledged what our people have known for over 12,000 years: we are an Indian tribe. A federal statute gives a United States court the power to make such a determination, and the Department of the Interior lacks the power to ignore this statute by refusing here to honor the court's holding ...

"Indeed," the statement continued, "in prior cases the Department of the Interior has accepted, and listed, numerous tribes recognized by courts acting outside of the administrative federal acknowledgment process, including cases involving Native Alaskan and California tribes. It should do so here."

Experts on Native American law agree there have been instances where courts have ruled that tribes should be federally recognized and the BIA complied.

"In one court decision up in Alaska, a tribe was recognized after a trial, and the BIA put that group on the [approved] list" even though it did not have a recognition petition pending with the BIA, said Robert Anderson, director of the Native American Law Center at the University of Washington School of Law.

G. William Rice, co-director of the Native American Law Center at the University of Tulsa College of Law, said the Passamaquoddy and Penobscot tribes in Maine, the Mashantucket Pequot in Connecticut and the Narragansett in Rhode Island all gained federal recognition after successful court cases.

But the legal experts said the agency also has ignored many similar court rulings.

Major backlog

So that could leave the Shinnecocks with only the BIA recognition process. For years, critics have harshly attacked the process as unfair, and even the BIA concedes it's slow.

"The BIA process doesn't work," said Keith Harper, an attorney with the Native American Rights Fund in Washington, D.C. "Nobody believes the system objectively analyzes the seven criteria they're supposed to and comes up with nonpoliticized fair decisions about who is a tribe."

To date the federal government has recognized 561 tribes. The BIA says 220 tribes have begun the application process or filed letters of intent. Ten tribes have files that are complete and ready for consideration, including the Shinnecocks; seven more are currently under review.

There are three teams of three employees each now reviewing applications as well as handling other responsibilities, but a fourth team will be in place this month to try to cut the backlog, officials said.

The BIA decides if a tribe should be recognized based on criteria that include proof that the tribe has a continuing record of its history; is a viable, organized community; exercises political authority by electing a governing body that has control over the community; and abides by a governing document.

The Government Accountability Office, which has produced several critical reports on the BIA recognition process, said that in 2001 the "BIA's tribal recognition process was ill equipped to provide timely responses to tribal petitions ... BIA's regulations outline a process for evaluating a petition that was designed to take about 2 years ... But BIA officials estimated that it could take up to 15 years for all the completed petitions to be resolved."

Beefing up staff

The GAO recommended that the BIA develop a strategy to improve the process. After a 2002 GAO report, the BIA added two employees to fill out a third review team.

"While Interior's Office of Federal Acknowledgment has taken a number of important steps to improve the responsiveness of the tribal recognition process, it still could take 4 or more years, at current staff levels, to work through the existing backlog of petitions ... ," a follow-up report last February said.

It averages 15 years to process an application through to a decision. Other than adding staff for the fourth review team to further reduce the backlog, Cason said, "I don't think there's a concrete thing we can do because most of the time is spent waiting for information from the tribes."

He said the BIA already works with the tribes to make sure they know what is expected in terms of documentation.

Once the BIA actually starts to evaluate a petition, spokeswoman Nedra Darling said, the review can take a year or more and then there is a six-month public comment period.

Cason, who has been the final review person on three cases since he took his position 10 months ago, said he sees no evidence of political interference or lack of consistency.

"Where the answer might be no, it's because there isn't as much supporting information," he said. "Where the answer is predominantly yes, you have tons of supporting information that the staff waded through to reach their determination." Copyright 2006 Newsday Inc.