Updated:
Original:

Conflict of interest? Judge who voided Cayuga claim lives under similar shadow

Author:

NEW HAVEN, Conn. - U.S. Appellate Judge Jose A. Cabranes, author of the
recent 2nd Circuit Court ruling voiding the Cayuga land claims, has a
distinguished resume.

A native of Mayaguez, Puerto Rico, he was General Counsel for Yale
University when first appointed federal judge in New Haven in 1979. He was
serving as Chief Judge of the U.S, District Court in Connecticut when
President Clinton appointed him to the Court of Appeals in 1994. He was
even mentioned as a possible Al Gore appointment to the U.S. Supreme Court
during the 2000 election.

But his ruling in Cayuga Indian Nation of New York v. Pataki raises
troubling questions, not only about his "novel" interpretations of basic
legal doctrines, but about a potentially serious conflict of interest.
Cabranes lives in an area near New Haven that has been roiled for more than
a decade by another set of tribal land claims. The original 12-year-old
suits by the state-recognized Golden Hill Paugussett tribe are still alive,
and tribal leaders have threatened to extend them over a territory of
750,000 acres inhabited by 1.6 million people.

Cabranes' hometown lies within the Paugussett Aboriginal territory. It is
listed as such in a pamphlet prepared for Connecticut's tercentenary in
1993. It has not been named as a target in the current Paugussett suit nor
in a memo the tribe issued in 2002 listing 15 additional parcels in 10
towns against which it was researching suits. But one of these towns was
adjacent to Cabranes' hometown, and Indian land claims tend to cause
uncertainties among residents not familiar with various outcomes of such
proceedings (no one has ever been forcibly removed from their property as a
result of an Indian land claim).

Furthermore, although the Paugussett suit lay dormant for years as the
tribe pursued federal recognition, it has shown recent signs of activity.
On May 18, tribal counsel Michael O'Connell petitioned U.S. District Judge
Janet Bond Arterton to restore the case to the active docket. In June, the
state of Connecticut filed a motion in opposition and the tribe made a
reply. Arterton has not yet ruled.

Cabranes issued his decision in the Cayuga case, which potentially could
bar land claims across the country, on June 28.

Tribal suits against individual property owners, what Cabranes called
"possessory land claims," could well be the largest single cause of the
recent surge in anti-Indian sentiment. Hostility against the Mashantucket
Pequot Tribal Nation in southeastern Connecticut can be traced to a round
of land suits in 1976, even though they were resolved in 1983 by a
congressional settlement providing federal recognition and an expanded
reservation. The Paugussett suits have been a constant goad in far more
affluent and influential southwestern Connecticut since they were filed in
1993.

In a decision dismissing one of the suits later that year, a state judge
wrote that it was meant to put "pressure" on land owners to support federal
recognition for the tribe, "perceived as a necessary step in the
Paugussetts' quest of a gambling casino in Bridgeport." As a tactic, it
backfired badly. When federal Judge Peter Dorsey initially dismissed the
suit in 1993, on the grounds that the Golden Hill tribe wasn't federally
recognized, a regional paper ran this quote from the liberal first
selectman of one of the state's richest towns over its front-page headline:
"Now, while they're down, I want to walk on them."

The suits rose and fell with the Paugussetts' roller coaster ride toward
recognition. The BIA rejected the tribe's petition in 1996, but agreed to
reconsider it in 1999. Meanwhile, the 2nd Circuit kept the suit alive but
asked that it be held in abeyance while the recognition issue was pending.
The dormant period stretched to eight years.

The BIA finally rejected the Golden Hill petition on June 14, 2004.
O'Connell argued, however, that the tribe still has standing through its
state recognition. Current research, he said, is focusing on parcels that
allegedly were sold in violation of state and colonial statutes similar to
the federal Trade and Intercourse Act of 1790, the basis for most tribal
land claims.

The wisdom of seeking to dispossess individual landowners, even as a
tactic, is very much in question. This paper has editorialized against it,
even though the Oneida land claim in central New York originally maintained
that option. The Oneida Nation of New York never exercised that option, but
the Wisconsin Oneida eventually did sue individual landowners. (The Oneida
Indian Nation of New York owns Four Directions Media, the publisher of
Indian Country Today.) The presiding District Court judge in the Oneida
case later barred claims against individuals, saying tribal plaintiffs
acted in "bad faith."

A second generation of actions, under the preferred title "land rights"
suits, has made a point of eschewing individual claims, instead targeting
governments, utilities and corporations. The Onondaga Nation proclaimed
that its recent filing was intended to force an environmental cleanup of
the sites it claimed, seeking with some success to avoid the intense public
hostility that greeted the Oneida and Cayuga suits.

It's another major question whether a judge can be truly impartial in a
land claims trial if he lives in an area affected by such a threat and the
intense reaction it provokes. Should he have recused himself, and should
his decision be reversed for conflict of interest?

It's instructive to compare Cabranes' situation with a complaint that
Connecticut Attorney General Richard Blumenthal loudly and repeatedly
lodged against Assistant Interior Department Secretary of Indian Affairs
Kevin Gover up through his resignation in 2002. Gover had been counsel for
the same Paugussetts during their unsuccessful petition for recognition in
the mid-'90s. Even though at Interior Gover recused himself from their
case, Blumenthal accused him vehemently of conflict of interest when he
allowed state recognition as a factor in other acknowledgment decisions.

Blumenthal wrote repeatedly that "the incurable taint of this actual or
apparent conflict of interest" should invalidate Gover's decisions on
recognition.

In a July 27, 2000 letter to the Interior solicitor, he wrote: "Recent
threats by the Golden Hill Paugussetts to sue innocent homeowners, and
place liens on the titles to 700,000 acres of land, raise the specter of
rapidly intensifying scrutiny and antagonisms on a number of levels. All
the more reason to be sensitive to the need for fairness, objectivity, and
integrity, and the public's perception of those qualities in the process."

The same words might apply to Judge Cabranes.