KENT, Conn. – Five months after the Schaghticoke Tribal Nation asked a district court judge to restore the tribe’s federal acknowledgment, the case is moving forward under an Interior Department secrecy initiative that would shield the federal government’s administrative record from public scrutiny, obscuring the details by which top officials made the unprecedented decision to repeal the tribe’s federal status.
A Privacy Act Protective Order, signed by New Haven U.S. District Court Senior Judge Peter Dorsey on June 12, states that only the court and parties to the appeal will have access to the federal government’s administrative record, but “no person having access to protected documents shall make public disclosure of them or their contents without further order of this court.”
Further, Interior Deputy Secretary David Bernhardt has asserted protective privileges over five documents that could be key in shedding light on the “internal deliberations” that caused officials in Interior, the BIA, the Office of Federal Acknowledgment and the Internal Board of Indian Appeals to terminate the tribe’s recognition.
The tribe was federally recognized by the BIA in January 2004. After an appeal to the IBIA by the state and other parties, and a year and one-half of relentless opposition by state Attorney General Richard Blumenthal, Gov. Jodi Rell, the state’s congressional delegation, other state and local officials, and an anti-Indian, anti-casino citizens group called Town Action to Save Kent, the BIA reversed the tribe’s final positive determination on Columbus Day last year.
When the tribe received federal acknowledgment, the BIA released its administrative record within weeks. In contrast, Interior refused to release the administrative record following the repeal of the tribe’s recognition despite several requests, STN attorney Eric Wiechmann said June 22.
“I think they were waiting to see if we were going to appeal. Then after the appeal was filed, they said they needed so many months to complete the record. Then when we got to that state, they didn’t want to release it until after the confidentiality order was signed. Obviously, we wanted it earlier, but we didn’t get it earlier,” Wiechmann said.
Parties to the appeal must sign a legal acknowledgment form saying they will abide by the terms of the protective order and will “return or destroy any and all protected documents, copies and notes in their possession” to the U.S. attorney as soon as the proceedings are over.
The state, an intervener in the proceedings, will represent the other interveners – the town of Kent, Connecticut Light and Power Co. and the private Kent School, all of which are defendants in the tribe’s pending land claims for 2,150 acres of undeveloped land adjacent to its 400-acre reservation on Schaghticoke Mountain in Kent. Connecticut’s colonial government set aside 2,500 acres for the tribe in 1736.
The tribe’s legal team currently is in the process of reviewing the record, particularly the five documents Bernhardt is claiming as privileged, Wiechmann said.
Among the privileged documents is a Dec. 21, 2004, five-page memorandum advising the Interior secretary about “options concerning the IBIA proceedings, setting forth the pros and cons of the options. … The memorandum conveyed to the client frank discussion and advice,” Bernhardt wrote.
However, a similar internal memorandum outlining the pros and cons of options regarding the tribe’s federal acknowledgment was released without claim of privilege after the BIA issued its positive final determination.
“We think we should have a chance to see some of the documents being withheld. There is what lawyers call ‘very highly relevant documents’ to what we need to do. The issue is whether the relevance outweighs the claims for privacy,” Wiechmann said.
Blumenthal said he was in the process of reviewing the privileged documents.
“Normally, I favor full disclosure. We apparently just received this information and we’re reviewing it to determine whether it was subject to disclosure,” Blumenthal said June 23.
Although the state has “full intervener” status, Blumenthal said he was not sure whether he would have the right to request that the documents be disclosed, if he were to conclude that they should be.
Interior did not respond immediately to a request for comment.
Filed in January, the tribe’s appeal names as defendants Interior, Interior Secretary Dirk Kempthorne (who replaces former Secretary Gale Norton as defendant), Interior Associate Deputy Secretary James Cason, the BIA, the OFA and the IBIA.
The appeal claims, among other allegations, violations of due process and improper political influence on federal decision-makers by Connecticut politicians and others.
The appeal alleges that Connecticut officials used the Washington lobbying firms of Perkins Coie and Barbour Griffith & Rogers to circumvent a stipulation in a court ruling that prohibited any of the parties from contacting Interior officials without prior notice to all the parties.
TASK founders Jim Perkins and Ken Cooper hired BGR in 2004 to help overturn the tribal nation’s recognition, saying they would raise $1.5 million for the job.
E-mails that were released under the Freedom of Information Act show close coordination and planning between BGR Chief Operating Officer Loren Monroe and Rell’s offices.
On Jan. 25, 2005, for example, Philip Dukes, Rell’s counsel, asked Monroe for help with a letter the governor was writing to Sen. John McCain, R-Ariz., chair of the Senate Indian Affairs Committee.
“I am looking forward to hearing from you on specifics relating to content you would like to see in our letter to Senator McCain,” Dukes wrote.
Monroe replied that he had consulted with McCain’s staff about the letter.
“I was hoping to get you our thoughts by today but I just connected with McCain’s staff a little while ago. I wanted to get their guidance on what the most effective tone and approach was for the letter before sending you my recommendations,” Monroe responded.
A few days later, Monroe sent Rell the letter he had drafted for her to send to McCain. The letter expresses Rell’s general opinion about the lack of “transparency” and “potential illegal activity” at the BIA, citing STN as an “illegitimate tribe” and its federal acknowledgment as an example of “a broken federal tribal recognition process.”
Rell’s chief of staff, Lisa Moody, apparently was aware of possible problems in the governor’s association with TASK and BGR.
In a Jan. 21, 2005, e-mail to TASK attorney Francis J. Collins concerning a meeting at the governor’s office with TASK and BGR, Moody wrote: “Who is involved with this meeting? We MUST be careful.”
Other e-mails released to the tribe’s attorneys during discovery last summer reveal BGR’s “strategies of surrounding the Department of the Interior” and contacting senior White House and agency officials at Washington events such as the National Governors Association and the Republican Governors Association annual meetings.
A web of connections exists that is “really hard to belive, if you believe in a fair hearing,” Wiechmann said.
“And it all brings to light the questions of why has every legislator tried to stop the process, tried to investigate the proceedings, and attacked the process and people in the worst language, saying it’s corrupt and illegal, and then ignoring an investigation by the Inspector General that said, ‘No, there was nothing wrong with the process,’” Wiechmann said.
“There were tons of pressure and people involved and we’re going to connect it all. We think it’s going to support our complaint and our request that the decision to rescind the tribe’s recognition be reversed,” Wiechmann said.