Interior officials to testify in Schaghticoke appeal

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NEW HAVEN, Conn. – Former Interior Department Secretary Gale Norton and current Interior Associate Deputy Secretary James Cason will be questioned under oath by attorneys for the Schaghticoke Tribal Nation in connection with allegations of due process violations and improper political influence in reversing the tribe’s federal acknowledgement.

In a 15-page ruling issued Nov. 3, U.S. District Court Senior Judge Peter Dorsey said the tribe’s allegations concerning Norton and Cason “are sufficient to warrant further discovery into the question of whether there was bad faith or improper behavior on their parts. At the very least, STN has presented evidence sufficient to find that they may have ‘unique personal knowledge’ with regard to activity and pressure concerning STN’s petition.”

Norton resigned her post suddenly last March during a federal investigation of indicted former Republican lobbyist Jack Abramoff in a scandal involving Indian gaming licenses she approved. The investigation is ongoing. Norton has not been implicated in any wrongdoing.

Dorsey also ruled that a declaration by former Assistant Secretary of Indian Affairs Aurene Martin will be included in the record. Martin testified in writing that the STN petition “was among the best and most thoroughly researched petitions ever reviewed by the BIA.” In so doing, Dorsey overruled an objection by Connecticut Attorney General Richard Blumenthal, who has led the opposition forces against the tribe. Blumenthal argued to strike Martin’s letter from the record because, in an Administrative Procedures Appeal, the court is usually limited to a review of the record and no new evidence may be submitted.

The Schaghticoke were given federal acknowledgement on Jan. 29, 2004, but it was taken away on Oct. 12, 2005, after an appeal to the Interior Board of Indian Appeals by Blumenthal and other parties, and after 18 months of ferocious, coordinated opposition by local and state officials; the state’s congressional delegation; and an anti-Indian, anti-casino citizens group called Town Action to Save Kent. It was the first time the BIA overturned its own previous positive decision. The tribe filed an appeal Jan. 12.

TASK hired the powerful lobbying firm Barbour Griffith and Rogers, which together with the Washington firm of Perkins Coie allegedly worked to overturn the tribe’s acknowledgement behind the scenes at the White House and Interior, according to information gleaned from a growing number of documents obtained from Freedom of Information Act requests.

In its motion seeking discovery, the tribe submitted evidence of alleged political pressure, including, among other things, meetings between Norton and the state’s congressional delegation “each time demanding that the Department reverse its decision”; a private meeting between Blumenthal and Norton in violation of a court order prohibiting ex parte meetings; hearings “fomented” by the congressional delegation “designed to consider reform of the tribal recognition process”; and former 5th District Republican Rep. Nancy Johnson’s introduction of a bill to repeal the tribe’s acknowledgement. The 5th District includes the town of Kent, where the tribe has a 400-acre reservation, the remains of 2,500 acres set aside for the tribe by the colonial government in 1736.

Johnson’s proposed legislation was “the first termination bill since federal repudiation of the termination policy nearly 50 years ago that threatened to strip the BIA of power to make a final binding determination as to the tribe’s petition and, in its place to usher in a new era of congressional termination acts with disastrous consequences for each and every American tribe,” the motion said.

(After 24 years in Congress, Johnson was defeated by Democratic candidate state Senator-elect Chris Murphy by a 12 percent margin in the Nov. 7 midterm election. Murphy has not yet put forth a position on STN or Indian country.)

Although the contacts between congressional officials and federal decision-makers “are not necessarily impermissible ones and do not necessarily prove that impermissible factors were taken into consideration, they do raise some questions,” Dorsey said in his ruling.

The contacts alone will not be grounds to overturn the agency decision unless STN can show that the alleged pressure actually affected the agency decision – a difficult job to accomplish, Dorsey said.

Dorsey denied the tribe’s request to question under oath Steven Griles, former Interior deputy secretary; David Bernhardt, director of Interior’s Office of Congressional and Legislative Affairs, and counselor to the secretary; Lee Fleming, director of the Office of Federal Acknowledgement; and Loren Monroe, of BGR.

The judge allowed the tribe to enter into the record a letter that he wrote to Connecticut Gov. Jodi Rell in August 2005 – five months before the tribe filed its appeal. In it, Dorsey told Rell that he had extended the tribe’s deadline for filing documents as a precaution “to avoid a reversal by another Court which might buy a due process argument.”

The letter was not made part of the record, and only came to light recently through a FOIA request. The tribe wanted to know how the letter was used, if there were more unfiled letters, and whether the letter could be read to mean that Dorsey had negatively prejudged the tribe’s due process claims.

“The letter does not reflect any view on the part of the Court, and the Court holds no views with regard to the merits of STN’s claims,” Dorsey wrote in his ruling. He denied the tribe’s request to depose Blumenthal on the issue.

“We don’t regard it as significant in terms of the ultimate outcome of this case,” Blumenthal said.