Blumenthal seeks intervener status in Schaghticoke appeal

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HARTFORD, Conn. – State Attorney General Richard Blumenthal is seeking intervener status in an appeal filed by the Schaghticoke Tribal Nation that asks a federal court judge to restore the tribe’s federal acknowledgement.

Blumenthal filed a motion March 20 with U.S. District Court Judge Peter Dorsey, who has overseen the tribal nation’s federal recognition process for almost two decades.

The STN filed a 32-page administration appeal Jan. 12 in U.S. District Court in New Haven, naming as defendants the Department of the Interior, recently resigned Interior Secretary Gale Norton, Interior Associate Deputy Secretary James Cason, the BIA, the Office of Federal Acknowledgement and the Interior Board of Indian Appeals.

The appeal cites violations of due process and improper political influence by Connecticut politicians in overturning the BIA’s recognition decision. The appeal alleges that the defendants breached their federal trust obligation to the tribe, “violated their own regulations, disregarded prior precedent, ignored evidence submitted by the Schaghticoke Tribal Nation, and allowed their decisions to be based on political influences from state and federal government officials and others rather than solely on the administrative record.”

The STN gained federal recognition in January 2004 under the tenure of former Acting Assistant Secretary for Indian Affairs Aurene Martin, Bad River Band of Lake Superior Chippewa.

But in an unprecedented action, the BIA reversed its decision in a reconsidered final determination on Columbus Day last October, saying the tribe now failed to meet some of the criteria for federal recognition that it had previously fulfilled. The decision to reverse the tribe’s federal status was made by the current non-Native associate deputy secretary, who notified the tribe of his decision by fax.

Blumenthal, who has often accused unnamed BIA officials of acting illegally by succumbing to political pressure and the federal recognition process of being “fatally flawed and corrupt,” said in a March 20 press release that the Indian agency and his office are now allies.

“Our goal in intervening is to buttress the BIA’s ruling. The Schaghticoke application was fatally flawed, falling far short of federal criteria for tribal recognition … For the first time, the federal government is an ally, not an adversary, in this fight to uphold federal rules on Indian tribal recognition,” Blumenthal said.

Blumenthal accused the BIA of violating its own rules when it granted the tribe federal acknowledgement in 2004. In his release, however, Blumenthal said, “My office asks only that the BIA be required to adhere to its own rules, which it did in denying the Schaghticoke petition.”

The attorney general’s motion is basely largely on the claim that the state is entitled to intervene because its “interest may be impaired” if the court restores the tribe’s federal acknowledgement. If that were to happen, the tribe would be entitled to the privileges and rights of a federally recognized sovereign nation, including the right to pursue land claims filed in 1998 for the restoration of approximately 2,200 acres of mostly undeveloped land abutting its 400-acre reservation on Schaghticoke Mountain in Kent. The colonial government set aside 2,500 acres for the Schaghticoke in 1736. The land claims, filed under the 1790 Non-Intercourse Act, assert that the property was illegally sold.

The attorney general’s motion was filed collectively on behalf of defendants in the land claims – the town of Kent, the private Kent School and Connecticut Light & Power Co., which flooded a tribal cemetery during construction of a hydroelectric facility in the early 20th century, according to documents filed with the BIA.

Eric Wiechmann, the tribal nation’s attorney, said the tribe will definitely respond to the attorney general’s motion within the required 21-day period with a motion arguing either to deny the state’s request for intervention or to restrict the intervention in a way to prevent the interveners from delaying a decision.

“Since our appeal was based on how the agency handled our petition, I’m not sure what their relevance is here. What we do not want is to delay this thing by having any of these parties rehash all the point they made before. That would be unfair to the tribe,” Wiechmann said.

The court is not likely to allow that to happen, he said.

“You have to remember that this all goes back to a ruling by Judge Dorsey when he said the Interior Department was not living up to its duties for a timely process of determination of our petition and, therefore, he was going to take over our petition in connection with the three land claims in Kent. So, they are parties to the land claims; but that’s not what’s being decided at this state.

“What we’re talking about is whether we’re federally recognized; and once we’re federally recognized then we’ll go on to the second part, which is the land that we owned in 1790, which was illegally transferred away from the tribe,” Wiechmann said.

The judge does not have to respond to the tribe’s next motion within a specific time frame, but Wiechmann said he believes Dorsey’s decision will come “fairly quickly since there are certain issues that have to be addressed, including when the BIA is going to release to us the record or database their used in deciding the Schaghticoke decision.”

A Freedom of Information Act complaint has been filed against the BIA for denying access to the documents.