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2nd Circuit denies Schaghticoke political influence appeal

NEW YORK – Despite the latest setback in the Schaghticoke Tribal Nation’s long quest for federal acknowledgment, Chief Richard Velky said he will continue to pursue justice and federal status for his people.

A three-judge panel of the 2nd Circuit Court of Appeals upheld a federal district court ruling denying federal recognition to the tribal nation.

In a six-page ruling Oct. 19, the panel acknowledged that an intense lobbying campaign to overturn STN’s federal status took place and involved elected officials in Connecticut, including Gov. Jodi Rell, Attorney General Richard Blumenthal, and members of the state’s congressional delegation.

The 2nd Circuit judges said officials lobbied the secretary of the Interior and other Interior Department officials “expressing an adamant opposition to the Interior Department’s potential acknowledgment of the Schaghticoke.”

But they lined up behind U.S. District Court Judge Peter Dorsey’s conclusion last year that the federal decision makers were not affected by the acknowledged fury of political pressure on them, because they said so.

“Interior Department officials uniformly testified in depositions that they were not influenced by the political clamor surrounding the Schaghticoke,” and, therefore, “the evidence submitted by the Schaghticoke cannot support a claim of improper political influence,” the panel said.

The statement contradicts a comment made by Judge José Cabranes at the Oct. 8 hearing in the 2nd Circuit.

“Of course, it’s hard to imagine they would say they were influenced.”

Velky said it was hard to imagine how the judges dismissed the evidence of political influence.

“When politicians coordinate their efforts and go to Washington and demand that the Interior Department overturn our federal recognition, and they do, how can you deny that’s political influence? We’ll be consulting with our legal counsel to form a strategy for our next step. We’re not quitting now. We’re going to continue to pursue justice for our people.”

STN received federal acknowledgment Jan. 29, 2004. Within minutes, Blumenthal and congressmen denounced the BIA and vowed to fight to reverse the decision. After 18 months, the BIA issued a Reconsidered Final Determination reversing the nation’s acknowledgment.

The 2nd Circuit did not have access to all of the nation’s evidence because Dorsey agreed to Blumenthal’s request to strike eight of 19 documents from the record that provided some of the most damning evidence of the organized opposition’s efforts to exert political influence on the decision makers.

Among them is an e-mail from Barbour, Griffith & Rogers, the Republican lobbyist now known as BGR, outlining an “under the radar” strategy and “tight coordination” among Rell, the congressional delegation and local officials in “surrounding the Department of the Interior” through meetings, budget hearings, the Jack Abramoff investigation and other venues with their lobbying efforts.

“Importantly, the political efforts must also be coordinated with the legal strategy being led by the attorney general (Richard Blumenthal) and Perkins Coie (lobbyist), which we are working to make sure occurs in Washington,” BGR wrote.

Another e-mail shows that BGR wrote a letter signed by Rell and sent to Sen. John McCain, R-Ariz., the former chairman of the Senate Committee on Indian Affairs, criticizing the BIA decision to grant Schaghticoke federal acknowledgment.

The 2nd Circuit also determined that James Cason, the associate deputy secretary who reversed the nation’s federal recognition, had the authority to do so, denying the nation’s claim that Cason’s action as the “decision maker” violated the Appointments Clause of the Constitution, because he was not nominated by the president and approved by Congress, and the Vacancies Reform Act.

The judges erroneously refer to Cason as “a career employee” of the Interior Department when he was a Bush appointee. Cason was among a group of Interior officials from Colorado who shared the common experience of having been advocates or lobbyists for big oil, gas, coal and mining corporations that operate on public and Indian lands, including former Interior Secretary Gale Norton, who is currently under grand jury investigation on corruption charges, and former Deputy Secretary Steven Griles, who was indicted in 2007 on obstruction of justice charges over his involvement with criminal former lobbyist Jack Abramoff.

Blumenthal issued a statement on the 2nd Circuit ruling.

“This decision is the legal coup d’ grace (sic) – finally putting this meritless petition out of its misery. In a case of Groundhog Day, the Schaghticoke’s recognition claims have been rejected again. An appeal to the U.S. Supreme Court – the only recourse left – would be futile and foolish, and we will fight it vigorously.”

The tribe can request a rehearing by the same three-judge panel or a hearing by the full en banc nine-member court, or petition the U.S. Supreme Court, but Indian law experts, including John Echohawk, executive director of the Native American Rights Fund, advise tribal nations against taking cases to the high court.

Velky said Blumenthal’s remarks were “racist.”

“He owes an apology not just to the Schaghticoke people, but also to the state of Connecticut. That he would defame a people is a disgrace. He’s supposed to be an educated, dignified man, but he treated us like we were a disease, not a people, and his remark about a coup de grace – a final death blow – has genocidal implications. The state attorney general should be above that kind of behavior.”

The Washington circle of lawyers and others involved in Indian law acknowledge that STN was cheated out of its federal acknowledgment by unlawful political influence, but they are unwilling to go on record, “because I still have to work with the BIA,” one said.

Matthew Fletcher, an Indian law professor at Michigan State University College of Law and director of MSU’s Indigenous Law and Policy Center, called the 2nd Circuit ruling “depressing” and bemoaned the fact that “the Obama administration did nothing. They’ve reversed litigation positions brought by the Bush II administration before, but don’t seem willing to do it for Indians. I suppose they need (Connecticut Sen. Christopher) Dodd and the Connecticut congressional delegation for health care or whatever, but this is just wrong.”