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Schaghticoke files petition for en banc appeal

KENT, Conn. – The Schaghticoke Tribal Nation has taken the next step in the long struggle to restore its federal recognition.

Tribal attorneys submitted two combined petitions with the 2nd Circuit Court of Appeals in New York at the end of November.

The first asks a three-judge panel to rehear the nation’s appeal of a ruling by U.S. District Court Senior Judge Peter Dorsey that upheld the BIA’s decision to rescind the nation’s federal acknowledgment. The panel dismissed the appeal in October.

The second asks for an en banc hearing by the full nine-judge court.

The ongoing case centers on the BIA’s unparalleled decision in October 2005 to strip the nation of the federal acknowledgment the agency itself had granted in January 2004.

The reversal came in the wake of a fierce and coordinated campaign of political opposition to the nation’s acknowledgment that was exerted on federal decision makers by Connecticut Attorney General Richard Blumenthal, Gov. Jodi Rell, the entire Connecticut congressional delegation, and others.

Perhaps the opponents’ most powerful weapon was Barbour Griffith & Rogers – the Bush administration-connected, former Republican lobbyist that has since morphed itself into the BGR Group, “the premier bipartisan” lobbyist, according to its Web site.

The nation appealed the reversal to Dorsey’s court, citing violations of due process and improper political influence. Dorsey dismissed it in 2008, in part because the federal decision makers said they weren’t influenced by the massive political pressure they acknowledged was exerted upon them.

The 2nd Circuit panel agreed with Dorsey’s assessment and dismissed the nation’s appeal in October.

In his petition for a panel rehearing, STN Attorney Richard Emanuel argues that the panel in its opinion “overlooked or misapprehended” the status of former Interior Associate Deputy Secretary James Cason, the self-described “decision maker” who reversed Schaghticoke’s federal recognition.

The panel said Cason was “a career employee.” Emanuel asked the court to amend its opinion to reflect that Cason was a political appointee – a fact “that is highly material to the resolution of (STN’s) ‘political influence’ claim.”

The panel deleted the reference to Cason as a career employee, but failed to say he was a political appointee.

The implication that Cason was not a senior official is refuted by the record. Emanuel wrote. Cason was part of former Interior Secretary Gale Norton’s “leadership team,” and he knew that Rep. Frank Wolf, R-Va., had threatened to go to the White House and have her fired if she did not reverse STN’s federal recognition, he wrote.

Norton, who approved the tribe’s recognition, said in a deposition that she and staff members had made a deliberative policy judgment that, as a matter of constitutional principles of federalism, the tribe’s 300-plus years of state recognition merited important consideration in the recognition process.

In rescinding STN’s federal acknowledgment, Cason relied on Blumenthal’s argument that state recognition should not be considered in federal recognition determinations – an argument his Indian country critics say is irrational.

Although Norton testified that she still believed the Schaghticoke recognition was fair and reasonable, once the political opposition campaign heated up she withdrew from the process and did not defend her decision or oppose Cason’s decision to reverse it.

In his request for an en banc hearing, Emanuel provides a hard-hitting review of the evidence of political influence and why the appeal should be heard.

Perhaps most prominent is a letter that Dorsey himself wrote to Rell July 11, 2005, while STN’s petition was under reconsideration by the BIA.

Rell had written to Dorsey, urging him not to allow the tribe an extension of time to submit more evidence. That letter was made part of the record. A few weeks later Dorsey responded in a private letter to Rell that said, in part, “Your frustration and impatience is (sic) fully warranted. … I have, in accordance with the view of the U.S. Attorney’s Office, allowed a slight extension for a request for technical assistant and information. ... This was intended to avoid any claim of infringement of the tribe’s due process. … It reflects a caution intended to avoid a reversal by another court which might buy a due process argument.”

Dorsey’s letter was not made part of the record, but was discovered a year later in a Freedom of Information Act request to the governor’s office.

“This letter is improper,” Emanuel wrote. While the letter in itself is not grounds for relief on appeal, “it is emblematic of the political pressures and entanglements that have permeated this case – and which can lead even well-intentioned adjudicators and judges ‘not to hold the balance, nice, clear, and true,’” he wrote, quoting a 1927 case.

“The letter displays a sympathetic attitude toward the governor, and a grudging attitude toward the tribe’s rights. It suggests that three years before he ruled on the Petition for Review, Judge Dorsey was calibrating how much due process was needed to ‘avoid reversal’ in this court. Logically, such calculation presupposes the tribe would be unsuccessful in the BIA, and in the district court, and therefore would need to appeal.”

STN Chief Richard Velky said he is reaching out to the National Congress of American Indians and the United South and Eastern Tribes – both of which passed resolutions supporting Schaghticoke’s federal acknowledgment – and the Native American Rights Fund for support.

“When a tribe is federally recognized it should be based solely on its merits. No state should have the right to force political influence over that decision. STN recognition was approved in 2004 on its merits.

“I would hope federally acknowledged tribes recognize that right now Schaghticoke might be alone, but a reversal against us will change a process to accept a standard dictated by any state on tribes seeking federal recognition, and then who do they move against next?”

Skibine: Second chance not likely under revised federal recognition regulations Tribes that have been denied federal acknowledgment are unlikely to be given a second chance under revised regulations, a top BIA official said. Principal Deputy Assistant Secretary for Indian Affairs George Skibine told the Senate Committee on Indian Affairs at a hearing in early November that the BIA will review existing federal acknowledgment regulations and develop new ones in consultation with tribal nations. Speaking to Indian Country Today at the Global Gaming Expo in Las Vegas in mid-November, Skibine said the BIA is starting to revise the regulations with the goal of having a process that is transparent and shorter so that a tribe will know going into the acknowledgment process “exactly when it’s going to end.” “We’ll be looking at the standards to see if some of the research can be changed in terms of how far you have to go back to look at evidence of the tribe and what I told Sen. Dorgan is, hopefully, by this time next year we’ll have drafts. We’re going into this initiative and we’ll have consultation with the tribes and go forward.” But it doesn’t seem likely that every tribe which already has been denied federal recognition will be given a new opportunity to repetition under revised rules, Skibine said. “Well, this is not a done deal yet. We’ll have to take a look at that issue, but I don’t think that amending the regulations means we’re going to allow all the tribes that weren’t approved to reapply. Otherwise, there will never be any finality to anything. That will be an issue we’ll be looking at, but I’m not sure it would make much sense to essentially start the process over for everybody. Because that would reopen every single case that’s been decided.” According to the BIA’s Status Summary of Acknowledgment Cases, as of September 2008, the bureau had processed 44 petitions for federal acknowledgment, granting it to 16 nations and denying it to 28. Since then, the bureau denied acknowledgment to the Little Shell Tribe of Chippewa Indians of Montana in a Final Determination, and issued a proposed negative finding to the Brothertown Indian Nation. Skibine also said the department has not yet formulated a position on proposed legislation to create a commission that would process federal acknowledgment petitions instead of the BIA. “We have not testified on the bill yet so I cannot tell you where the administration is going to fall on that,” Skibine said. The proposed bill – H.R. 3690 – was introduced by U.S. Delegate Eni Faleomavaega, D-American Samoa, in early October and sent to the House Committee on Natural Resources, but no hearing has been scheduled.