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American Spirit on the Housatonic

The Schaghticoke tribe is praying for the long-lost bones of its ancestors. Standing on the Connecticut reservation their families once called home, members clasp one another’s cold hands. They turn their backs on the neighboring town of Kent and on the massive vans parked like sleeping giants on the other end of the plateau. They wait outside the wooden fence of the reservation’s small cemetery, bordered by spindly birch trees and the Housatonic River. It is early November, and they have gathered from across the state to clear away the autumn’s fallen leaves and to pay their respects to the departed.

“We are putting our ancestors back in the ground, where they should be, and back on the reservation,” says Ed Sarabia, a member of another Native American tribe who has come to officiate the ceremony. Dressed in a plaid shirt and jeans, he crosses the circle to pick up a can of American Spirit tobacco and a blue, gun-shaped lighter. He tells those present to forget about their unfinished work and their unpaid bills for the moment. As part of the purification ritual, called a “smudge,” he raises a flame to a braid of dried sweet grass and recites a blessing. Two other tribal members make their way around the circle in silence, tracing a ring around each participant with the burning braid. It dips from head to shins, and then rises again, smoking faintly.

As they enter the cemetery, each participant pinches tobacco from the large can and scatters it in the freshly dug hole in the corner of the burial ground. Beside it sits a shallow, white box filled with bones. Nick Bellantoni, the former state archaeologist who brought the bones to the reservation today, declares that they are, without a doubt, of Native American origin. Several years ago, archeologists unearthed the seventeenth-century bone fragments in Fort Hill, outside of New Milford. Though the bones may have come from one of the related tribes that lived in the area centuries ago, Sarabia takes the opportunity to focus on the spiritual Creator. It is a time to celebrate commonality, rather than difference.

For the Schaghticoke, returning to the land is a fraught subject, and proving ancestry is even more contentious. Though Connecticut has recognized their tribe since 1736, they have spent the last few decades trying to get the U.S. Department of the Interior to make the same determination. Joining the roster of 566 federally acknowledged tribes would come with far-ranging benefits. It would give the tribe the status of a sovereign nation, and guarantee its members funding and services for education, healthcare, housing, law enforcement, and resource protection through the DOI’s Bureau of Indian Affairs. It would also help the Schaghticoke reclaim much of their reservation land. According to the tribe, the approximately 2,500-acre reservation has shrunk to four hundred acres, since state-appointed overseers sold off much of the land to cover Schaghticoke debts. But the land claims stand little chance in court without federal recognition.

In order to gain United States’ stamp of approval, the tribe must demonstrate that it has been a distinct community governed by a political authority since what the Bureau of Indian Affairs calls “historic times,” starting as early as 1789. Despite the work of researchers, anthropologists, genealogists, and attorneys, corroborating the tribe’s continuous existence has been a costly, decades-long process. The tribe’s massive collection of court files, meeting records, land sales, marriage certificates, and other documentation has helped it almost reach its goal, but according to the DOI, significant gaps remain in the historical record.

For a brief, promising moment in 2004, the U.S. government granted the Schaghticoke the coveted federal status. The seemingly endless process the tribe started when it filed a letter of intent to the BIA in 1981 had finally come to a close. But Connecticut politicians, led by then-Attorney General Richard Blumenthal, placed their support behind the town of Kent and other landowners around the reservation who were opposed to the tribe earning federal recognition. Connecticut, the affluent Kent School, the local power utility, and a dozen towns and cities requested that the DOI reconsider the evidence. By 2005, the department issued a Reconsidered Final Determination. The Schaghticoke became one of the only tribes in history to be stripped of its federal status through an overturned decision.

“That’s the oddity of being native,” says Sarabia, the spiritual leader, after the ceremony. “Why do we have to prove who we are in our own country?”

unnamed-7Most people have left the reservation, and the tribe has splintered, preventing it from showing a unified front. The two groups—the Schaghticoke Tribal Nation (STN) and the smaller Schaghticoke Indian Tribe (SIT)—are engaged in a bitter dispute over leadership. But the fight for recognition continues. The STN, which lost its federal status in 2005, has renewed hopes: in 2013, the DOI proposed making the acknowledgement requirements far less stringent. The SIT—which pushed the DOI to reconsider its approval of the STN—aims to complete its own petition for recognition. But a previously rejected tribe has little chance of emerging victorious, even if its two halves agree that they deserve more than just a rocky patch wedged between the state border and a town that doesn’t want them. As the opposing Schaghticoke chiefs challenge each other’s legitimacy, they play into the hands of lawmakers who say their community has fallen apart.

Ruth Garby Torres, a Schaghticoke historian, says that the tribe is partly responsible for its current condition. She critiques both tribal groups for foregoing reconciliation. “We’ve been victimized by a process, but there’s blame to be shared within the tribe,” she says. “There’s failure, or an inability, or both, to figure out how to move forward and still disagree.”

* * *

The office of Richard Velky, chief of the Schaghticoke Tribal Nation, is packed with the paper trail of more than a quarter century of legal battles. Tall black file cabinets sit next to shelves filled with fat binders. A dream catcher with a decorative snake coiled around it hangs on the wall. Towers of cardboard boxes with scrawled red labels lean against one another between the plastic potted pants. In the largest room of the Derby office, the curtains are drawn and the ceiling is unfinished, giving it the air of a forgotten attic. As I glance at Velky’s desk, I find a glossy flyer for the California Gaming Summit next to a Coca-Cola bottle and a mug with a Native American wearing a headdress.

“Inside these walls here, we have over 45,000 pages to prove our heritage,” says Velky, a portly man with receding white hair. He points to a stack of giant Rubbermaid tubs, one of an estimated hundred in the office. The BIA’s regulations have forced tribal members to become hyper-specific about their heritage, so the tribal office has started to look like the home of a hoarder. Velky calmly describes the countless letters he has written and reports he has filed. Only on occasion does he slip into the tone of a boxer who has taken a few too many punches.

The current process of tribal recognition was created in 1978; prior to that, groups were declared tribes by acts of Congress. However, the process is notoriously slow, as both the tribes and the BIA are often disorganized. The Schaghticoke filed a letter of intent to petition in 1981, but they didn’t complete their petition for another thirteen years. They lagged behind two other Connecticut tribes, the Mohegans and the Mashantucket Pequots, who each opened their own enormous casinos after winning federal recognition. Until two years ago, the Foxwood Resort Casino, owned by the Pequot, was the largest casino in the U.S.

Casinos, with their glitzy, seedy vibe, are glorified in Vegas movies and vilified in debates about moral towns. They complicate the BIA’s already convoluted processes. In 1988, Congress passed the Indian Gaming Regulatory Act, granting tribes special gaming rights. The number of petitions skyrocketed as tribes seized the opportunity for economic growth. In Connecticut, federally recognized tribes are the only groups permitted to own casinos, and Velky considers the state government’s fear of additional casinos to be the primary cause of its opposition to the Schaghticoke. He insists that he is not pressing for recognition exclusively because of gaming rights, but he would consider opening a casino outside of the current reservation land.

Yet casinos attract more than tourists. Steven Austin, who worked as an anthropologist for the STN, spelled out the politicians’ fears. “The casinos bring in corruption, problems with prostitution and drugs, and other evils,” he says. The state’s concerns extend beyond gaming, to tribes’ potentially far-reaching land claims, and their exemption from state and local property regulations. Though a quarter out of every dollar played at the Mohegan Sun or Foxwoods Resort Casino, excluding gamblers’ final winnings, goes to the state in lieu of taxes, the economic calculation doesn’t necessarily work out in the state’s favor. Tribal recognition confers the right to additional expensive social services. It also makes cuts into the state’s tax base.

But the grounds for the Reconsidered Final Determination have to do with something far more technical: historical gaps in the tribe’s extensive documentation. According to Velky, the problem arises from the fact that community leaders kept poor records in both the 1800s and 1900s. The fact that a state reservation existed bolstered the Schaghticoke’s original case, but Connecticut politicians protested against using state recognition as a marker of community, leading to the DOI’s painful revision.

Velky still remembers camping on the reservation with other tribal members to tend a spiritual fire in the two weeks before the DOI’s 2005 decision. It was Columbus Day when they received news of the Reconsidered Final Determination, which invalidated their federal status. Finality had come and gone, and a torrential rain started to fall. “That was our ancestors talking aloud, saying that they were upset,” he says.

Research and litigation have cost the tribe an estimated $20 million, much of which came from Subway founder Frederick A. DeLuca, who may have expected a cut of eventual casino profits. “The only way we can pay investors back is through gaming,” Velky explains. (The Director of Corporate Communications for Subway said DeLuca was unable to comment).

DeLuca cut off his financial support after the tribe lost its recognition, so Velky is left to collect money from other private investors, hoping they can stretch funds far enough. Even now that the research process is complete, he must pay a few hundred dollars each month to keep his office, located above a hair salon and a chiropractor, with a view overlooking a parking lot.

CeremonyThe chief insists that where he really belongs is on the reservation: “If you go out this way, you see the first house. My grandfather was born in that house in 1903,” Velky explains on the day of the ceremony, gesturing at a boarded-up brown house with white-trimmed windows. The government made it difficult to for tribal members to return after they first moved away. According to Velky, overseers from the state welfare department denied his grandfather permission to return to the land in the 1950s. In the 1960s, he says, Kent firemen used some of the tribal houses for training drills, igniting some of the recently abandoned homes and preventing them from being passed on to younger generations of Schaghticoke.

The tribe has become increasingly diffuse far from the land. Prior to a wedding in 2011, it had been 114 years since there had been a marriage between two Schaghticoke members. But over a decade ago, when Velky last surveyed the Schaghticoke, eighty families said they would return to the land if given the change. He believes they the rest, like him, have held onto that dream.

We enter an adjoining room in the office, where a walking stick adorned with antlers and pheasant feathers lies nestled behind a large paper shredder. The abandoned fax machine and black-and-white images of traditionally dressed Native Americans are a reminder of what the recognition process has become. It is a fierce assertion of identity that relies upon endless clerical work. Yet Velky is determined to carry on. “Our people have been in every war for the people that are in the United States,” he tells me with pride and a hint of rancor. “We have fought diligently for our people and our rights, and we have been neglected.”

* * *

Alan Russell, the leader of SIT, is the tribal member who knows best what it means to call the land home. He is one of a handful of Schaghticoke who still live on the reservation. His newly rebuilt house sits up the road from the clearing where Velky’s people park their cars during the annual fall cleanup, which he does not attend. Velky and Russell do not speak to one another. Both claim to be the properly elected Schaghticoke chief; both claim that the other has essentially forged the names on his membership rolls to make them look more legitimate.

When I meet Russell on his property in November, behind the sign “BEWARE OF DOG,” he alleges that Velky is a fraud, one who has forced himself into the role of chief, and who has made headlines only because of his shady financial supporters. Russell, in the meantime, is still trying to muster up the money required to complete his petition for federal recognition. According to Bill Buchanan, a construction worker who has been the SIT’s primary consultant over the past decade, the petition will be completed this year. He himself is not Schaghticoke—he has no Native American heritage whatsoever—but he strangely points out that he is a relative of William Boyd, the actor who played the famed cowboy Hopalong Cassidy. “It’s kind of a modern-day cowboy-and-Indian event,” he adds, as though he could revise America’s history by stepping into the spurred boots of a cowboy hero.

The 67-year-old Russell leans on a rake as he tells me his goals are more modest than Velky’s. A trading post, medical benefits, and educational scholarships would be nice for his people. But the real reason he is considering filing for federal recognition is because he fears that Velky would attempt to throw him off the land. “If he ever tried that, he’d be a dead man,” Russell says. Though his family lived in New Haven for a few years after Russell’s father enlisted in World War II, they moved back to the land when Russell was only four years old. There is a video, he tells me, of him taking his first footsteps next to the wooden sign that says “Schaghticoke Indian Reservation.”

The Schaghticoke, like the officials who have combed through their family records, are mired in a genealogical argument, as they note and scrutinize every happy marriage and every sour divorce. Russell states that he and Velky are distant cousins—they share a white great-grandmother—but Russell is descended from her first marriage, with Schaghticoke Jim-Pan Harris, while “Velky is the product of a white man.” Though the BIA ruled that Velky has provided adequate proof of his ancestry, the SIT will not relent. Buchanan claims that, earlier this year, Velky’s nephew submitted his saliva to to find out if he is Native American. It was Buchanan’s suggestion that he use the genealogy site, but the relative never sent him the results.

Both parties accuse each other of foul play. Velky suspects that Russell burned down the central pavilion on the reservation and pulled out the crosses from Velky’s relatives’ graves. Russell claims that Velky harassed Russell’s dying mother and threatened his wife with a knife. “They play dirty, you know what I’m saying?” Russell asks me. I struggle to reconcile his claims with my memory of the man who offered me a warm handshake just a few hours before, and whose grandkids played games by the campfire.

STN membership remains at around 300 while SIT’s formal membership hovers closer to 125. Buchanan, Russell’s consultant, insists that Velky copied the names of SIT members onto the STN’s membership list and pretended that there had been some sort of reconciliation between the two groups to get federal recognition. What the Reconsidered Final Determination actually says is that there were a significant number of people who declined to enroll in the STN, which means that the STN is not representative of the entire Schaghticoke community. The document indicates that an SIT petition will be considered when it is submitted.

Buchanan states that Russell has 4,000 documents in his house that could address the gaps in the STN’s records. It’s a dubious claim, given that SIT lacked the millions their opponents spent to unearth all of the relevant paperwork, but he could be right, if tribal members withheld their personal records until now. Until the petition is complete, it remains to be seen what the BIA will say. “When we get approved, all hell’s going to break through,” Buchanan says, without a doubt that the SIT will succeed.

Regardless of whether or not Russell has grounds for a new petition, his complaints show just how high-stakes the fight for reservation land has become. As reservations have become more restricted, the chief’s role in defending the land and the tribe becomes increasingly politicized. The disagreements over land affect the healthcare, schooling, and employment prospects of hundreds of people, to say nothing of their cultural identity and ancestral land.

“I don’t care about federal recognition. I really don’t. I just want to live here peacefully,” Russell says earnestly. But in the legal web spun around native land rights, there are many more factors at play. As matters of sovereignty become fixed into the law, one man’s desire to stay in his house becomes a problem far beyond the bounds of his gateposts.

* * *

The town of Kent has one traffic light and a population of about 3,000. Bruce Adams, who leads the town’s Board of Selectmen, looks out from the second floor of the Kent Town Hall. There are a handful of parked cars and a shopping center that has seen better days, but the town has remained as quaint as when he moved there in the 1970s. One of its major tourist attractions is still the nineteenth-century Bull’s Bridge, one of the only covered wooden bridges in Connecticut. “If a casino were built in this town, it would change this town forever,” Adams says.

The tribal members have explicitly stated that, if they received federal recognition, they would be more interested in building gaming facilities in other parts of the state, near larger cities that would bring customers. Adams doubts the Schaghticoke would build a casino in Kent, but the possibility that they would do so is enough to set him on edge. He fears the changes he has seen in the towns around Connecticut’s existing gaming centers: traffic, overcrowding, construction. Even if the tribe just opened a bingo facility or to started to sell tax-free cigarettes and liquor, he worries that they would compromise the town’s New England feel.

As a local social studies teacher for over thirty years, he has taught children from both Kent and the Schaghticoke reservation. Still, Adams speculates that if the tribe were to win all of its land claims, it could hypothetically force the closure of the Kent School, the prestigious boarding school founded in 1906. The Schaghticoke could also tear down the town’s sewage treatment plant, which would cost $9 million to replace. Velky calls Adams’s statements “fear-mongering” unfounded in fact. But reflecting on the relationship between the town and the tribe, Adams says, “It’s become antagonistic for one reason, and one reason only: money.”

The state of Connecticut takes Adams’s side in the debate over federal recognition. The proposal by the BIA to streamline the federal recognition process poses a new threat. The published draft states that third parties would be able to veto petitions from tribes that were formerly denied recognition, which would give the state the right to intervene. But no one knows whether the regulations will be passed in their current form. After a series of public hearings last summer, the tentative plan is still under consideration.

According to the BIA, only seventeen of the 566 federally recognized tribes have made it through the current BIA process under the current regulations since 1978. Most of the others had been approved by Congressional actions. The new rules would require the tribe to demonstrate that they have maintained a community with an active political body since 1934, as opposed to “historic times.” This would drastically reduce the amount of paperwork, legal maneuvering, and funding required, especially if the existence of state reservations is considered sufficient proof. Since July 2014, close to 3,000 people submitted testimony about whether the BIA should approve the proposal. Led by Connecticut Senator Richard Blumenthal, all of the state’s Congressional representatives wrote a letter in opposition to the more lenient requirements. Governor Dannel P. Malloy wrote his own letter, stating that, for Connecticut, “the consequence would be devastating.”

“When does no mean no? What gives anyone the right to lighten the rules?” Adams asks. He coaches after-school sports, and he likens the situation to an athletic competition: “Remember that game you lost back in 2001? We’re changing the rules, and we’re going to give you another try at winning the game.” Or, in the bleak words he recounts from one of his attorneys, “It’s a little bit like Whack-A-Mole.” Whenever Kent seems to finally be safe, the tribe pops back up.

Adams rejects the notion that communities who have been so thoroughly disenfranchised for centuries deserve reparations: he believes that the time for that has passed. The Oneida Nation lost a land rights case in Sherrill County, New York, several years ago, because the judge ruled that the land had been under different ownership for too many years. And Adams states that the same must be true when looking at what is owed to the Native Americans in Connecticut. The town has already spent $400,000 to fight the Schaghticoke over the last fifteen years, partly through a group called Town Action to Save Kent (TASK).

“There’s no question that wrongs were done to Native Americans way back when,” he says. “But I think we’ve gone too far the other way in trying to make things right.”

* * *

Room 1505 of the Thurgood Marshall U.S. Courthouse in New York City is packed with people in suits by the time Richard Velky arrives. Dressed in a baseball cap and jeans, he stands out in the crowd of suited lawyers. He has come to hear the fate of his land be debated at the Second Circuit Court of Appeals. The case is distinct from a BIA petition for federal recognition, but even he knows that a state-recognized tribe’s chances of winning this case are slim. He is here, in part, on principle. He strolls across the pristine white marble floors, watches the ornate gold-hued doors of the elevator close behind him, and takes a seat near the black wall.

The sound of a gavel rings out across the courtroom. “Hear ye, hear ye,” an assistant shouts out, as the judges file in: the Honorable Peter W. Hall, Gerard E. Lynch, and later Richard C. Wesley. Clad in black robes, in a room with elegant dark wood paneling, they too sit surrounded by reams and reams of documents. Video screens around the room project their faces to the audience, alongside the image of the speaker at the podium. When the green light at the podium turns on, the speaker may begin. Each has a little more than ten minutes to state his claims before the timer hits zero and the light turns red.

Benjamin Green, the representative for the Schaghticoke, faces a formidable coalition: the Kent School Corporation, the Town of Kent, the Connecticut Light & Power Company, and the United States of America (collectively referred to as “Defendants” in the brief). The Preston Mountain Club and several private estate owners are also listed as appellees. Green stands, looks up at the judges, and informs them that the tribal land was sold without U.S. approval. His clients, he indicates, should not be denied the protection of the Indian Nonintercourse Act.

“This is another step in what has been more than a decades-long struggle,” says Green. But as he starts to cast doubt once again on the DOI’s decision to deny recognition, Judge

Lynch, the snappiest, most fiery of the three justices, cuts him off: “But we’re through all that,” he says, before leaning back in his chair to listen to Green argue that times have changed. Green’s case comes to rest on the tenuous argument that the BIA considers a state reservation to be representative of a political community, at least according to the summary accompanying the proposed BIA rule changes.

The discussion frequently returns to the standard set by Montoya v. United States, the 1901 court case under which a tribe is defined as “a body of Indians of the same or a similar race, united in a community under one leadership or government and inhabiting a particular though sometimes ill-defined territory.” But the ruling comes from a time when the government’s relationship with tribes was drastically different from what it is now. Another part of the 1901 decision notes: “Owing to the natural infirmities of the Indian character, their fiery tempers, impatience of restraint, their mutual jealousies and animosities, their nomadic habits, and lack of mental training, they have as a rule shown a total want of that cohesive force necessary to the making up of a nation in the ordinary sense of the word.” Despite the clearly outdated attitudes, the court is interested in keeping with precedent.

David Elliott, an attorney for the Kent School, comes to the stand, followed by John Hughes, from the United States Attorney’s Office for the District of Connecticut. Dick Schell, the friendly, round-faced headmaster of the Kent School, sits on the opposite side of the room from Velky. He has heard this debate rehashed countless times, and he has traveled all the way from Kent for the case, even though he thinks it is extremely unlikely that the claim will go through. He has been headmaster for thirty-three years at the school, which he himself attended as a boy, and concerns about the Schaghticoke’s claim have has always existed. “It’s a long, drawn-out affair,” he says at the end of the presentation of arguments.

The representatives of the defendants stand outside the courtroom congratulating one another for a job well done, and Velky walks past them without a word as he makes his way to the exit. Elliott insists that once the STN loses this case, its land claim is over. But of course, as rules shift, the matter is never so simple. “If the BIA enacts the proposed regulations, this tribe will go back to the BIA to be recognized and they will be recognized,” Schell tells me, matter-of-factly. It is irrelevant to these defendants which of the chiefs triumphs; to them, Velky and Russell are on the same side of the problem. But for now, since the tribe has not met the standards for federal recognition, the defendants have won their case.

* * *

pic1In the fall, back on the Schaghticoke reservation, Bellantoni, the former state archeologist, is placing the bones into a gravesite. Kneeling over a hole dug in the corner of the cemetery, he pulls out femurs, tibias, and smaller fragments from the white tissue in which they are wrapped. Prior to 1990, they would have likely been discarded, or simply covered up, since they were found on the site of what used to be a Native American fort. A sand and gravel company blew up the area in the early 1900s, Yale researchers excavated some of the remains in the 1930s and 1940s, and another construction company brought a bulldozer to sift through the ground about a decade ago. Now, the location is being prepared for condominiums, and Bellantoni has driven the remains across the state so they can settle into the ground on Schaghticoke territory.

“We can’t know they are Schaghticoke, but they are of native descent,” says Velky. It has never been important to him and his tribe to prove the specifics of lineage—that is the concern of the politicians around them. “If they don’t end up here, they’re going to end up in some museum,” he adds.

The Schaghticoke encircle the hole in the corner of the cemetery. One man brings clippings of fresh pine to lay in the grave, and Velky rubs sage from a Ziploc bag between his hands as he stands over the dirt pit. Bellantoni covers the bones with 4,000-year-old flint spearheads that were found at the site and may have been funerary objects. A tribal member adds the rest of the tobacco at the end, and the men begin to cover it up with shovels.

There will be no bulldozer coming to the Schaghticoke cemetery, no matter what the U.S. government decides. At the very least, the tribe’s members know that they have four hundred acres where they can continue to gather. They come on days like this to eat hamburgers around a campfire, or test their guns in preparation for deer-hunting season, or practice rituals that have been sacred for centuries. But people don’t lie quietly, like bones. They turn against one another and speak angrily of how they have suffered.

 Maya Averbuch is a junior in Berkeley College. She is the managing editor of the New Journal.

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