NEW HAVEN, Conn. – A federal judge has denied the Schaghticoke Tribal Nation’s appeal to restore its federal recognition in part because federal decision makers said they were not influenced by the frenzy of political pressure that was brought to bear upon them.
The BIA acknowledged the Schaghticoke Tribal Nation in a Final Determination in January 2004. After relentless and orchestrated campaign of opposition by local, state and federal elected officials led by Attorney General Richard Blumenthal, and an anti-Indian sovereignty group and its powerful White house-connected lobbyist, Barbour Griffith & Rogers (BGR), the BIA in an unprecedented move reversed itself in a Reconsidered Final Determination (RFD) and took away both the Schaghticoke and Eastern Pequot Tribal Nation’s federal acknowledgement. Interior’s Associate Deputy Secretary James Cason, a non-Indian Bush appointee, issued the RFD.
The nation filed an appeal in January 2006 claiming the reversal was a result of unlawful political influence and a violation of due process.
In the first sentence of his 54-page ruling, U.S. District Court Senior Judge Peter Dorsey described the Schaghticoke Tribal Nation’s quest for federal acknowledgement as a “politically loaded question.” He acknowledged the intensity of the lobbying campaign to reverse the decision “in the so-called backrooms of Washington” against “the Secretary of the Interior, the BIA, the IBIA, the White House, and even this Court.”
The question Dorsey posed was “whether this lobbying exerted improper pressure on agency officials and amounted to undue political influence on the agency process,” and in the end he decided it did not.
“Although one may be sympathetic to suspicions that powerful political forces interfered with an independent review of their tribal recognition, the court must accept the evidence as presented at face value, in particular the testimony by the agency decision makers that they were not unduly pressured by particular politicians or the political climate at large,” Dorsey wrote.
Despite acknowledging that the tribe’s federal recognition was “fiercely opposed” by “political actors,” the judge discounted the tribe’s claim that the RFD was not only the product of unlawful political influence, but also was tainted by the appearance of impropriety, which as a matter of law is enough in itself to void the decision.
Schaghticoke Tribal Nation Chief Richard Velky issued a prepared statement in response.
“We obviously strongly disagree and have very serious concerns with the conclusions reached by the court. We continue to believe that we are eligible for federal recognition, that we should be recognized, and that the recognition we had and deserved was unlawfully taken from us through improper political influence.
“We are continuing to review the order and we are evaluating our options for appeal, and will continue to act in the best interest of the Schaghticoke Tribal Nation.”
The options include a request to Dorsey for reconsideration and an appeal to the 2nd Circuit Court of Appeals in New York.
In arriving at his decision to dismiss the nation’s appeal, Dorsey responded to a request from Blumenthal to strike eight of 19 documents from the nation’s record – documents providing some of the most damning evidence of the organized opposition’s efforts to exert political influence on the decision makers.
Among them is an e-mail from BGR’s Loren Monroe that proposes “tight coordination” among Gov. Jodi Rell, the congressional delegation and local officials in “surrounding the Department of the Interior” through meetings, budget hearings, the Jack Abramoff investigation and other venues with their lobbying efforts.
“Importantly, the political efforts must also be coordinated with the legal strategy being led by the Attorney General (Richard Blumenthal) and Perkins Coie (another prominent Washington lobbyist), which we are working to make sure occurs in Washington,” Monroe wrote.
Another e-mail shows that the lobbyist wrote a letter that Rell signed and sent to Sen. John McCain, the former chairman of the Senate Indian Affairs Committee, criticizing the BIA decision to grant Schaghticoke federal acknowledgement.
During the limited discovery Dorsey allowed the nation to conduct, former Interior Secretary Gale Norton testified that during a meeting with Connecticut Congressman Chris Shays, Virginia Congressman Frank Wolfe threatened to use his influence at the White House to get her fired if she did not reverse the tribe’s federal acknowledgement.
Dorsey discounted the threat as evidence of political influence because Norton said she ‘didn’t lose any sleep” over it.
Dorsey also dismissed the tribe’s claim that the RFD was unlawfully arbitrary and capricious, disregarding instructions from the Interior Board of Indian Appeals, precedent, regulations, expert testimony and logic. He accepted Blumenthal’s arguments that state recognition of the Schaghticoke over the past 300 years was not evidence of the tribe’s social and political continuity.
He also dismissed the tribe’s argument that its intra-tribal marriage rate during some periods of the 19th century reached a 50 percent threshold that could be used as evidence of social and political continuity.
The tribe had calculated marriages based on the number of individuals rather than marriages, in part because relying on the number of marriages would require 100 percent of tribal members marrying each other in order to reach the 50 percent threshold.
Turning that argument inside out, Dorsey wrote, “Ignoring marriages of group members to persons outside the group would always lead to marriage rates of 100 percent, a result which even a layperson would conclude is absurd and does not measure social cohesion as the regulations intend.”
He was also “not convinced” by the tribe’s contention that Cason was not authorized to act as an Assistant Secretary – Indian Affairs (AS-IA), because he was not a presidential nominee confirmed by the Senate – a requirement for those acting as a “principal officer of the United States.”
Blumenthal issued a triumphalist press release.
“Today’s victory reaffirms reality – the Schaghticoke petition for recognition failed because it was meritless. Sovereign status must be granted only to groups that meet the explicit federal criteria, and the Schaghticoke have failed to meet those standards.
“One by one, the judge has batted away the Schaghticoke claims, leaving no shred of legal or factual support. While they may appeal to the federal court of appeals, this recourse would seem as futile and ill-founded as the effort rejected today, and we are prepared to fight it as vigorously as we did this one.”