Schaghticoke Tribal Nation seeks restoration of federal acknowledgement

Gale Courey Toensing
10/12/07

Part two

(Editor's note: This article continues the story of the Schaghticoke Tribal Nation's motion for summary judgment in its appeal of the BIA's unprecedented decision to withdraw the tribe's federal acknowledgement 18 months after the agency issued a Final Determination recognizing the tribe. The tribe claims that unlawful political influence, an unauthorized decision-maker, and substantive errors of interpretation and methodology resulted in the reversal of its federal status. The tribe's attorneys have included more than 1,200 pages of e-mails and other documents received through Freedom of Information Act requests as evidence to support their claims.)

NEW HAVEN, Conn. - Political pressure on the Interior Department to reverse the Schaghticoke Tribal Nation's federal acknowledgement intensified in the fall of 2004 when a group of wealthy citizens in Kent, where the tribe has a 400-acre reservation, formed an anti-Indian recognition/casino group called TASK (Town Action to Save Kent) to try to overturn the tribe's recognition, according to the tribe's motion for summary judgment in its appeal of the BIA's decision to withdraw the tribe's federal acknowledgement.

TASK hired lobbyist Barbour, Griffith and Rogers to do the job.

''Our role will be to coordinate and enhance local, state and federal political as well as legislative efforts in tandem with legal strategies to convince BIA/Interior to reject the [tribe's] petition,'' BGR's Loren Monroe said in an e-mail to Connecticut Gov. Jodi Rell.

''Ironically, the same politicians who had at one time accused the Tribe of hiring high priced lobbyists to place undue political pressure on the Department now welcomed BGR with open arms,'' the tribe's attorneys wrote.

BGR Vice President Bradley Blakeman, formerly President Bush's deputy assistant for appointments and scheduling, used his White House ties to meet and communicate about the tribe with high-level White House staff, including Barry Jackson, President Bush's deputy assistant and deputy to Senior Adviser Karl Rove, and Susan Ralston, Rove's executive assistant, the motion says.

State Attorney General Richard Blumenthal encouraged BGR to ''go directly to the administration and ask that [a] clear message be sent to the Secretary of Interior and the BIA'' at a meeting with TASK founders, even after he was chastised by Senior U.S. District Judge Peter Dorsey for an ex parte meeting with then-Interior Secretary Gale Norton.

''The regulations do not permit participants in the process - or their proxies - to present arguments and evidence in secret, ex parte meetings, letters or other communications to the agency, nor do they permit anyone to subvert the acknowledgement process by pressuring agency decision makers to deny a petition regardless of its merits through such ex parte communications,'' the attorneys wrote.

In addition to unlawful political influence, the tribe's attorneys argue that the Reconsidered Final Determination is invalid because Associate Deputy Secretary James Cason was not authorized to issue it. His appointment by Norton as assistant secretary of Indian affairs violated both the Constitution's Appointments Clause and the Vacancies Reform Act, because he was not a presidential nominee confirmed by the Senate - a requirement for those acting as a ''principal officer of the United States.''

''Lacking authority to act as he did, his decision is, by operation of law, null and void'' and cannot be ratified retroactively, the attorneys wrote.

Even Blumenthal acknowledged the Senate-approved presidential-nominee requirement in a letter to then-U.S. Attorney General Alberto Gonzales, asking Bush to replace then-BIA head Dave Anderson.

''I am making this request to the President rather than to [Norton] because the [AS-IA] is a presidential appointment,'' Blumenthal wrote.

Cason's claim during a deposition that he was oblivious to the maelstrom of political pressure on Interior is belied by his own 2005 job performance self-assessment - a document Interior withheld until ordered by a federal judge in mid-September to release it under the FOI Act.

In listing his ''accomplishments'' under ''ability to manage high visibility issues,'' Cason noted his decision to reverse the acknowledgements of the Schaghticoke and Eastern Pequot tribal nations.

''These were particularly controversial decisions involving an emotional Connecticut delegation and Governor's office and Indian entities that had been recognized by a predecessor Assistant Secretary,'' Cason wrote.

Additionally, the attorneys provide lengthy arguments to show that the RFD was unlawfully arbitrary, capricious and unreasonable regarding the issues of state recognition, and the tribe's endogamous marriage rate during a few years in the 19th century.

In remanding the tribe's FD back to the BIA for ''further work and reconsideration,'' the Interior Board of Indian Appeals had asked the BIA to provide more analysis of the ''probative value'' of state recognition to supplement evidence of political authority during periods when direct evidence was minimal, and to re-examine the tribe's endogamous - or intratribal -marriages.

''[T]he Department did the exact opposite. As a result of political pressure, or perhaps outright incompetence, the Department misread the IBIA opinion,'' concluding without explanation that the state's centuries-old recognition of the tribe has no probative value, the attorneys wrote.

In so doing, the RFD also ignored a policy decision made by Norton and the BIA/OFA staff after a deliberative process that as a matter of ''constitutional principles of federalism,'' the tribe's hundreds of years of state recognition merited important consideration.

The IBIA did not and could not by law reverse that policy decision, the attorneys said.

Finally, the attorneys argue that the RFD's claim that the tribe's endogamous marriage rates wrongly counted individuals instead of marriages and therefore did not meet the 50 percent threshold to count as evidence of political authority was arbitrary, capricious and illogical. It ignored precedent, the regulations, and expert testimony that all marriage rates are to be calculated by the number of individuals, not marriages, which would unreasonably require 100 percent of tribal members to marry each other in order to reach a 50 percent threshold of endogamous marriages.

Interior and the state have until Nov. 8 to respond to the tribe's motion, followed by the tribe's reply by Nov. 23. The tribe asked the judge to restore its federal recognition, but has maintained its right to a trial if the court rules against its request, and has asked for independent adjudication if the petition is sent back to the BIA.

''In light of the agency's susceptibility to undue influence and the significant impact a decision not to acknowledge the tribe would have on the lives of the Tribe's members, should the Court find that remand is appropriate, the Court should require a formal agency adjudication, including a full evidentiary hearing before the agency with the right to present evidence and cross-examine experts before a neutral administrative law judge, or, in the alternative, a U.S. Magistrate Judge,'' the attorneys wrote.

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