Department and lobbyist ordered to release documents
NEW HAVEN, Conn. - A federal court judge will allow the Schaghticoke Tribal Nation to take testimony from additional Interior Department officials, and has ordered the department and a high-powered Washington lobbyist to release documents that may shed light on the tribe's claim that the decision to reverse its federal acknowledgement was politically influenced.
In a ruling on March 20, U.S. District Court Senior Judge Peter Dorsey granted the tribe's request to take testimony, or depositions, from David Bernhardt, Interior's current solicitor who was deputy chief of staff to former Interior Secretary Gale Norton during Connecticut's appeal of the tribe's federal recognition, and from Lee Fleming, director of the Office of Federal Acknowledgement. Both men were involved in the decision-making process that ended in the repeal of the tribe's acknowledgement, court records say. Dorsey denied a request to take testimony from Interior Solicitor Barbara Coen.
Earlier this year, the tribe was allowed to take testimony from Norton and Associate Deputy Secretary James Cason.
In addition, the lobbying firm of Barbour Griffith and Rogers has been ordered to release documents about its contacts in Congress and Interior, who may have influenced the reversal decision. The lobbyist was hired by TASK, a well-funded anti-Indian group in Kent, where the tribe has a 400-acre reservation, to help quash the tribe's recognition. Based on the documents BGR released, the tribe will also be allowed to take testimony from the BGR representative who ''was most clearly aware of the actions taken by BGR on behalf of TASK,'' Dorsey said.
Interior also has been ordered to produce a file of documents about tribal recognition that Norton took home when she left the department in early 2006. The court will review the file in camera, meaning the judge alone will review it.
The tribe is also allowed to amend its original appeal to include its argument that Cason did not have the authority to issue the reconsidered final determination repealing the tribe's federal status because he was not properly appointed by the president and confirmed by the Senate, but rather was appointed by Norton. Her delegation to Cason of the authority to act also violated the Vacancies Reform Act, the tribe said.
Dorsey's ruling is the latest action in STN's ongoing administrative procedures appeal of Interior's reversal decision. The appeal names Interior and its officials as plaintiffs and alleges, among other things, violations of due process, unlawful political influence and congressional interference in the reversed decision.
The BIA federally recognized STN in January 2004, but Cason repealed both the Schaghticoke and the Eastern Pequot tribal nations' federal acknowledgements in October 2005 after a relentless orchestrated opposition campaign by Connecticut officials, TASK and BGR, according to court documents. It was the first time the BIA had ever reversed its own prior decision.
The court's permission to conduct further discovery is unusual. As a general rule in such appeals, courts confine their review of an administrative agency's decision to the administrative record, Dorsey said. However, STN was allowed to take testimony from Norton and Cason in January, and has amassed thousands of pages of documentary evidence from Freedom of Information Act requests and the administrative record to support its claims.
Although the standard for further discovery is high, Dorsey said, ''the evidence produced by STN raises some questions about whether there was improper political influence during the federal acknowledgement process at issue here.''
During Norton's deposition, for example, she revealed that Rep. Frank Wolf, R-Va., in March 2004 threatened to go to the White House and have her fired if she did not reverse STN's federal recognition. In an earlier deposition, Delores Schiesel, a former top elected local official in the Schaghticoke territory in Kent, testified that she went to the White House in May 2005 with the founders of TASK and BGR Vice President Bradley Blakeman to talk to an aide about reversing the tribe's recognition, according to court documents. Blakeman was a top White House aide to President Bush until he joined BGR in the middle of 2003 and had maintained close connections with his former White House colleagues.
Dorsey ordered Interior and BGR to produce the documents and the tribe to conduct the depositions before the end of April.
The STN appeal is unfolding against the backdrop of the Justice Department's continuing investigation of the political influence and corruption involving indicted lobbyist Jack Abramoff and Bush administration officials. Recently, Justice announced its investigation of former Interior Assistant Secretary Stephen Griles for alleged perjury during testimony before the Senate Indian Affairs Committee. Griles, who worked closely with Cason at Interior, also had ties to BGR founder Haley Barbour and to former Interior Solicitor Sue Ellen Wooldridge. Both Griles' and Wooldridge's names appear on various internal documents regarding federal recognition. While the relationships raise questions about potential interference in the reversal of the tribes' federal acknowledgement, Justice spokesman Dean Boyd would neither confirm nor deny whether other Interior officials are under investigation.