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2nd Circuit to hear Schaghticoke appeal

NEW YORK – Almost five years to the date after the BIA issued a devastating reversal of the Schaghticoke Tribal Nation’s federal acknowledgment, the 2nd Circuit Court of Appeals will hear oral arguments in the nation’s ongoing quest to restore its federal status.

The hearing will take place Oct. 8. The STN case is the last on a list of eight other cases to be heard that day.

The BIA recognized STN in a Final Determination Jan. 29, 2004, then reversed its decision on Columbus Day, Oct. 12, 2005, in an unprecedented Reconsidered Final Determination, taking away the federal acknowledgment of both the Schaghticoke and Eastern Pequot Tribal Nation.

While the Eastern Pequots have not challenged the reversal, STN has fought it since January 2006 through an Administrative Procedures Appeal in the U.S. District Court in New Haven. The appeal names the Interior Department and its top officials during the Bush administration as defendants.

Connecticut Attorney General Richard Blumenthal is an intervener in the case representing the state, the town of Kent, which is next to STN’s 400-acre reservation on Schaghticoke Mountain, and nearby landowners whose properties are subject to the nation’s land claims.

The APA appeal claimed the recognition reversal was due to unlawful political influence by powerful politicians, an anti-Indian casino group and its lobbyist, Barbour Griffith & Rogers, now known as BGR, who violated federal laws, agency regulations, congressional ethics rules and court orders in trampling the tribes’ due process rights.

In August 2008, U.S. District Court Senior Judge Peter Dorsey granted the defendants’ motion to dismiss the case, and denied the tribe’s motion to restore its federal acknowledgment, or appoint a magistrate judge or special master to determine the tribe’s status, or remand the issue to Interior for further consideration.

Dorsey acknowledged in the first paragraph of his ruling that the lobbying that “followed the Final Determination in the backrooms of Washington is the subject of much concern to STN.”

In addition to direct contact with officials in the White House, Interior and the BIA, the lobbying was so fierce that it included the first termination bill in Congress since the 1960s, sponsored by a former Connecticut congresswoman, and a threat by a Virginia congressman to go to the White House and have former Interior Secretary Gale Norton fired if she didn’t reverse STN’s federal acknowledgment.

Norton is currently the focus of a federal corruption probe about whether she used her position to benefit Shell Oil, the company which later hired her as legal counsel, and the latest in a long line of former President George W. Bush appointees to be investigated.

Dorsey tossed out STN’s appeal in part, he said, because he believed Norton and other federal decision makers who claimed they were not influenced by the frenzy of political pressure.

The 2nd Circuit Appeal, written by Connecticut attorney Richard Emanuel, does not argue on the merits of the nation’s federal acknowledgment petition, but focuses on matters of law pertaining in large part to the district court’s handling of the political influence issue. Emanuel argues, for example, that the 2nd Circuit can and should consider the tribe’s claim of political influence not only under an “actual influence” standard, but also under a stricter “appearance of bias” or “appearance of impropriety” standard.

STN Chief Richard Velky is looking forward to the 2nd Circuit hearing.

“I have to think that the judges would find things favorable for our tribe in the sense that due process was not followed and there was blatant political influence that reversed our positive decision.

“Our recognition rights were stripped from us five years ago. So much time goes by, but to me it’s almost like it was yesterday. My hope is the 2nd Circuit will do the right thing and give it back to us. It’s something we’ve proven through almost 40,000 pages of documents to the BIA.”

Blumenthal and the Interior Department continue to argue largely based on the merits of STN’s petition, claiming, for example, that the state’s 300-year relationship with the Schaghticoke Indians does not provide evidence of the tribe’s social and political continuity.

Blumenthal also cites an early 1990s research paper by William Starna, professor emeritus of anthropology at the State University of New York at Oneonta, to bolster his argument that STN didn’t meet the criteria for social and political continuity. At the time, Starna said the tribe would need more research and documentation to prove its history.

Ironically, Starna has provided that research. He is among a group whose scholarly work continues to uncover more details about the Schaghticoke community that lived in what became northwestern Connecticut and eastern New York.

In July, Starna and his wife, Corinna Dally-Starna, published a massive two-volume set called “Gideon’s People, Being a Chronicle of an American Indian Community in Colonial Connecticut and the Moravian Missionaries Who Served There” (University of Nebraska Press). Dally-Starna is the translator of “Lakotas, Black Robes, and Holy Women: German Reports from the Indian Missions in South Dakota, 1886–1900” (Nebraska 2007).

“Gideon’s People” is the story of the American Indian community in the Housatonic Valley of northwestern Connecticut at a place called Pachgatgoch, later Schaghticoke. It is based on decades of German language diaries and other records kept by the Moravian missionaries who came to Schaghticoke Mountain to “lead their Native flock to the Lamb.”

“The evangelical achievements of the Moravians among the Indians, at least initially, were equal to and may have exceeded those of other Protestant missions in New England,” the Starnas wrote. “In large part, this success can be attributed to their conscious forbearance in the exercise of the ‘civility must precede Christianity’ mandate of their competitors and to their adherence to a cultural relativism that echoed the approach taken by the Jesuits in their Canadian missions.

“But what the Moravians did accomplish pales in comparison to the feat of the Housatonic Valley Indians. Pachgatgoch, known today as the Schaghticoke Indian Reservation, remains in the hands of Indian people, members of the Schaghticoke Tribe. They have survived.”