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Schaghticoke challenges Cason's legal authority

KENT, Conn. - The Schaghticoke Tribal Nation has challenged Interior Department Associate Deputy Secretary James Cason's authority to act as ''the decision-maker'' in overturning the tribe's federal acknowledgement in October 2005.

In the latest twist in the Schaghticokes' decades-long quest for federal recognition, attorneys filed a motion Jan. 23 in U.S. District Court in New Haven, claiming that Cason violated both the Appointments Clause of the Constitution and the Vacancies Reform Act when on Oct. 12, 2005, he issued a Reconsidered Final Determination reversing the BIA's January 2004 positive federal acknowledgement decision.

Cason was functioning as an Assistant Secretary for Indian Affairs but was not appointed by the president or confirmed by Congress, and therefore exceeded his authority by issuing decisions that only a ''principal officer of the United States'' can lawfully render; therefore, the RFD is void, STN's attorneys wrote.

Cason also reversed that day the federal status of the Eastern Pequots, whose federal recognition had been issued two years earlier.

Interior's Inspector General's office could not comment on what the implications would be concerning Cason's other high-level regulatory decisions, if the Schaghticokes' claims are upheld.

The motion is part of the tribe's appeal of the reversal of its recognition. The appeal alleges, among other things, that the RFD was arbitrary and capricious, a violation of the tribe's due process rights and the product of unlawful political influence and congressional interference. It asks the court to restore the tribe's recognition. Interior and its officials are named as defendants.

The appeal is ''the Tribe's remaining hope to regain the federal recognition that was wrongly taken from it in the RFD. It is no exaggeration to say that the Tribe is fighting for its very existence. What happened to this Tribe, including the circumstances in which it lost its prior positive recognition are, at a minimum, unusual and deserving of careful review. The Tribe has alleged since its federal recognition first came under attack that various political officials acted improperly to reverse that recognition. This improper delegation of authority to Mr. Cason is one more part of the story of the illegal handling of the Tribe's recognition. The Court should hear the full story of the Tribe's fate,'' one of the attorneys said.

The Schaghticokes' claims have ''no merit,'' said Connecticut Attorney General Richard Blumenthal, who led the state's relentless opposition to the tribe's federal recognition.

''They are yet another attempt to deflect attention from the real issue: the Schaghticoke Tribal Nation's woefully insufficient evidence in support of its petition for federal recognition. I am confident that the BIA's final decision denying the group federal recognition will stand,'' Blumenthal said.

On Aug. 2, 2001, Norton named Cason ''associate deputy secretary'' - a title that does not appear on Interior's organizational chart on its Web site at www.doi.gov. In February 2005, when the duly appointed and confirmed ASIA David Anderson resigned, Norton issued an order relegating all of the ASIA responsibilities, duties and functions to Cason.

''Information obtained by the Tribe - including the recent depositions of former Secretary Norton and Mr. Cason ... makes plain that, in this capacity as Associate Deputy Secretary, James Cason at all relevant times performed duties that rendered him a 'principal officer' of the United States. As such, he is required by the Constitution and case law to have been a PAS [presidential appointee, Senate confirmation] appointee. He was not,'' the attorneys wrote.

The tribe's attorneys declined to release transcripts of Cason's and Norton's depositions, but Blumenthal included excerpts in a brief he filed opposing the tribe's request to take testimony from other Interior officials.

The tribe's attorneys said ''it was no accident'' that Cason was appointed outside of the PAS process - he did so to avoid Senate scrutiny. Cason failed to win Senate confirmation in 1989 when former President George H.W. Bush nominated him as Assistant Secretary for Natural Resources Environment in the Agriculture Department. His inability to win Senate confirmation related to his actions in Interior's Land and Minerals Management and Bureau of Land Management during the 1980s.

''Mr. Cason's decisions at the Department of the Interior were uniformly bad when measured against any reasonable standard of public interest and fairness to the public which owns the public lands,'' said R. Max Peterson, the chief of the U.S. Forest Service during the Reagan years, in an article called ''Leave No Tree Behind'' posted on www.counter punch.org in August 2003.

Interior's Deputy Inspector General Mary Kendall could not comment on the merits of the Schaghticokes' claims because the issue is in litigation.

''But as a lawyer, not speaking on behalf of the IG's office, I think these are very, very interesting legal issues,'' Kendall said.

If the tribe's arguments are upheld, what would it mean for all the other high-level decisions Cason has made? Should they stand? Should they be reviewed or vacated?

''I can't go there,'' Kendall said.

Inspector General Earl Devaney's office has investigated both the tribe's positive recognition process and Cason's roles in Interior.

Devaney investigated the BIA's Schaghticoke recognition process in 2004 at the request of Connecticut Sen. Christopher Dodd, a Democrat who recently announced he is running for president in 2008. Connecticut officials had accused the BIA and the tribe of political influence, corruption and ''bending the rules.'' The investigation exonerated both the BIA and the tribe of any wrongdoing. The recognition decision was ''highly controversial,'' but the process had been honest and transparent, Devaney said. Connecticut officials then accused the IG's office of corruption and ''whitewashing'' the investigation.

The IG scrutinized Cason's actions during an 18-month investigation of former Deputy Secretary J. Steven Griles, who was notified by the Justice Department in January that he was likely to be indicted for lying under oath about his relationship with the criminal former lobbyist Jack Abramoff.

The investigation involved allegations that Griles and ''DOI officials'' had steered $1.6 million in Bureau of Land Management contracts to Griles' former clients. Griles had assigned Cason to screen all matters relating to the contracts from which he had ostensibly recused himself.

The investigation was not able to pin down any ethical violations, but issued a scathing indictment of Interior's ''cowardly and disingenuous'' failure ''to provide rigorous ethics advice to the political leadership.''

The investigation was impeded by the shape-shifting nature of Griles' former oil and gas industry clients who ''continually merge, change names, and develop subsidiary companies,'' and by ''an unanticipated lack of personal and institutional memory, conflicting recollections; poor record keeping'' and other deficiencies.

Cason's authority to act without a presidential nomination and Senate confirmation also raised a red flag years before the tribe's current claims. In response to a query from Committee on Energy and Natural Resources Chairman Sen. Jeff Bingaman, D-N.M., in 2002, the Government Accountability Office reported that Cason at that time was not making high level regulatory decisions and, therefore, was not ''a de facto officer'' of the United States subject to presidential appointment and Senate confirmation.