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New evidence surfaces in Schaghticoke appeal

KENT, Conn. - A batch of handwritten notes about the Schaghticoke Tribal Nation's historic marriage rates surfaced recently at the BIA, raising more questions about how and why Interior Department decision-makers made the unprecedented decision to reverse the tribe's federal acknowledgement, tribal attorneys said in their latest court filing.

The tribe's appeal of the reversal of its recognition alleges violations of due process and improper political influence, and names Interior and its officials as plaintiffs.

The Feb. 23 motion says the seven pages of notes that Office of Federal Acknowledgement genealogist Rita Souther found when she was ''spring cleaning'' her office recently add weight to their previous request for permission to take testimony from Barbara Coen, an attorney in Interior's solicitor's office.

''New information just produced by the Federal Respondents emphasizes the central role played in this recognition process by Ms. Coen, revealing that the justification for her deposition is now even greater,'' the attorneys wrote.

The tribe has also asked for testimony from David Bernhardt, Interior's former congressional liaison and current solicitor, and Lee Fleming, OFA director.

Souther is part of the OFA research team that worked on STN's petition. The tribe received federal recognition from the BIA in January 2004, only to have it reversed by Interior Associate Deputy James Cason in October 2005 after a fierce opposition campaign by Connecticut officials, an anti-Indian citizens' group and its powerful White House-connected lobbyist, Barbour Griffith and Rogers.

Souther sent her newly discovered notes and a memo to Coen on Feb. 8, seeking advice on what to do with them.

''I know we had some discussion about the litigation in the not too distant past regarding submitting the STN administrative record ... [These notes] are clearly my incomplete kind of 'thinking on paper' notes, and not something I would have copied to distribute to anyone else. However, I do not know if they should be considered part of the STN administrative record or not,'' Souther wrote.

Coen sent Souther's documents to U.S. Attorney John Hughes, who represents Interior in the appeal, and he sent the packet to the tribe's attorneys, who filed them and other documents as exhibits with the motion.

The notes appear to be in two different handwritings. The first page, dated June 22, 2005, is addressed to Coen and discusses documents that should be sent to the Interior Board of Indian Appeals in response to Connecticut Attorney General Richard Blumenthal's appeal of the tribe's recognition. The writer also expresses concern about ''ex parte'' contact with the IBIA judges, because parties to the tribe's petition were prohibited by a court order from contacting Interior decision-makers.

The remaining pages, written by Souther on July 14, 2005, are concerned with how the OFA calculates and applies endogamous marriage rates, or marriages between tribal members.

Cason's reversal of the STN's acknowledgement rested on two issues - the use of state recognition to supplement some periods of the 19th century when documentation was not available, and endogamous marriages during some periods of the 19th century.

Former Interior Secretary Gale Norton, who approved the tribe's recognition, testified in January that she and staff members made a considered, policy judgment that, as a matter of constitutional principles of federalism, the tribe's hundreds of years of state recognition merited important consideration in the recognition process. She said she still believes the decision to recognize the STN was fair and reasonable.

The second claim was that the tribe fell short of a 50 percent ''threshold'' for endogamous marriages because it had counted individuals instead of marriages. The 50 percent threshold can be used as ''carryover'' evidence for continuous community and political authority, two of the mandated criteria for federal recognition.

But Souther's notes indicate there was no established or consistent method of calculating marriage rates.

''Is it the percentage of marriages or the percent of members who marry other members? The [regulations] say 50 percent of the marriages ... [There's] more than one reasonable interpretation. ... Did we rely on the number of marriages in others [other tribes]? ... The guidelines say count individuals. ... What action do we take now? What do we send to IBIA in terms of response to CT? Is there a standard [of the anthropologists] on how to calculate the endogamy? Count marriages or individuals? ... Regs [regulations] say marriages in one place and members elsewhere - so there is an ambiguity,'' Souther wrote.

Nowhere in Souther's notes, in other documents in the record received through Freedom of Information requests or in the regulations does it explain how a tribe could reach a 50 percent endogamous marriage rate by counting marriages rather than individuals, since a marriage count would require 100 percent of tribal members marrying each other.

The ambiguity, lack of consistency, or even a precedent led Souther to question the next steps.

''Do we let sleeping dogs lie ... tell IBIA ... inform Aurene [Martin, former Acting Assistant Secretary Indian Affairs, who signed off on the STN's positive recognition] ... file something on her behalf saying it's inconsistent and ask it back or ask the Sec. to pull it from IBIA and then would it be delegated back to us?'' Souther wrote.

Almost six months later, on Dec. 2, 2005, three days after the tribe's deadline to file final documents, Coen submitted a ''Supplemental Transmittal'' informing the IBIA that there was a problem with the tribe's marriage rates, the attorneys wrote.

''That document effectively undercut the Tribe's Positive Final Determination by informing the IBIA that it could not rely upon the endogamy analysis used in that Positive Final Determination. By waiting over five months to file the Supplemental Transmission, Ms. Coen ensured that the Tribe was procedurally foreclosed from an opportunity to refute the endogamy-related assertions that undermined its recognition,'' the attorneys wrote.

Coen was one of the ''decision-makers'' upon whom Cason relied in deciding to reverse the STN's acknowledgement, the attorneys said. She wrote the supplemental transmittal, ''which the tribe views both substantively and procedurally ''to be among the most unfair documents in this record,'' the attorneys wrote.

''Both the Tribe and this court are entitled to understand Ms. Coen's role in reversing the Tribe's recognition,'' they said, urging the court to allow further discovery.

Both the tribe's attorneys and Interior officials declined comment.