The Schaghticoke Tribal Nation (Tribe) has requested that the United States implement its existing policy to use alternative dispute resolution (ADR) to resolve the litigation over its tribal lands that the United States has condemned for the relocation and expansion of the Appalachian Trail. This resolution would be consistent with Attorney General Reno's expressed position that when the United States is an adverse party to an Indian tribe, the dispute should be resolved by agreement rather than litigation. See Office of the Attorney General, Memorandum: Use of Alternative Dispute Resolution in Disputes between Indian Tribes and the United States or one of its agencies, Dec. 10, 1996.

Federal officials have raised two policy concerns about the use of ADR in this context. First, they argue that it would be unfair to determine the Tribe's status in advance of those in the BIA queue for recognition. Second, they argue that determining federal tribal status through ADR, an issue that must be settled in order to resolve the litigation, would compromise the integrity of the BIA's administrative standards. Neither of these arguments diminishes the suitability and the benefits of relying upon ADR in this situation.

ADR resolution of Schaghticoke status would not prejudice other petitioners for federal recognition. The Tribe faces a situation unlike that of any other petitioner in the BIA queue. The United States is engaging in litigation to acquire Schaghticoke tribal lands. Federal recognition is integral to the Tribe's defense of that suit. Schaghticoke is the only petitioner suffering a continuing trespass as a result of the United States unilaterally routing the Appalachian Trial through its Reservation without basis in law or color of title.

Furthermore, the BIA's queue of petitioners is not sacrosanct. The Assistant Secretary Gover for Indian Affairs has authority, which he has previously exercised, to waive the priority provisions. For example, Assistant Secretary Gover chose to advance the Paucatuck Eastern Pequot petition ahead of other petitioners to serve the "administrative convenience of the government" and to promote "the most efficient use of the BIA's scarce resources." In a similar administrative context, a federal court has confirmed that the United States may lawfully resolve litigation in the public interest through negotiation and informal settlement even though that resolution may preferentially advance participants in a priority queue. See Bristol Bay Area Health Corporation et al. v. Shalala, Case No. A-95-258 (D. Alaska June 7, 1995) (United States agreed to make payments to specified tribal plaintiffs despite effect of jumping plaintiffs ahead of other tribal entities waiting in "queue" for similar payments).

Federal officials argue that other tribal petitioners might face added delay in the BIA queue through diversion of BIA resources to the Schaghticoke ADR. The ADR procedures could ensure that BIA resources be used only to the extent necessary to ensure compliance with BIA criteria and precedent.

The integrity of BIA standards can be protected by the ADR protocols. The Tribe has proposed that ADR determination of tribal status be governed by BIA criteria and precedent. Independent expert reviewers are to evaluate evidence of tribal status in accordance with BIA standards and precedent. Their final reports would be subject to BIA oversight, review and --ultimately-- recommendation of acceptance or rejection.

The public interest would be servied by using ADR to resolve the Appalachian Trail dispute. The suit was commenced by the United States more than 14 years ago to condemn real estate for the National Park Service to relocate and expand the Appalachian Trail under a specific mandate for the restoration and improvement of the Trail. ADR would cut years of delay from the Park Service's ability to fulfill that mandate. Additionally, ADR will help mitigate the Department of Interior's conflict of interest in this litigation. Both the BIA and the National Park Service are bureaus within DOI. A negative determination by the BIA would give NPS a litigation victory. ADR would place the determination of tribal status in the hands of an impartial decision-maker.

Finally, ADR could remedy the trespass caused by the current routing of the Appalachian Trail through tribal land. Without such resolution, the Tribe will need to find an alternative remedy for this continuing trespass. Some alternatives might require excluding hikers from Reservation lands. ADR holds the opportunity to realign the Trail in a way that can protect tribal rights, serve the public interest, and implement the government's express policy in favor of ADR to resolve disputes with tribes.