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Schaghticoke further challenges Interior associate deputy;s authority

Tribe seeks restoration of its federal acknowledgement

NEW HAVEN, Conn. - The Schaghticoke Tribal Nation has filed a motion in federal court to bolster its argument that Interior Department Associate Deputy Secretary James Cason had no authority by law to overturn its federal acknowledgement.

The May 29 filing in U.S. District Court in New Haven supplements STN;s appeal of the BIA's unprecedented decision, in a reconsidered final determination signed by Cason in October 2005, to reverse its own final determination 18 months earlier that had granted the nation federal acknowledgment.

The reversal came after a coordinated campaign of relentless opposition from Connecticut's elected officials, and from an anti-Indian casino group and its powerful White House-connected lobbyist, Barbour Griffith & Rogers, according to the tribe's court filings.

STN filed its appeal in January 2006 and claims the tribe's opponents violated federal laws, agency regulations, congressional ethics rules and court orders in crushing the tribe's due process rights.

The tribe is asking the court to vacate Cason's RFD and restore its federal status.

The latest filing presents documents to support the nation's argument that Michael Olsen, the acting principal deputy assistant secretary for Indian affairs at the time leading up to the RFD - October 2004 through September 2005 - should have handled the Schaghticoke case.

But Interior and Olsen say that he was not the principal deputy at that time and insist that Cason acted legitimately. They characterized the tribe's arguments as ''misplaced, misleading and irrelevant'' in court filings.

The new filing includes dozens of documents that Interior released in April, five months after the tribe's attorneys filed Freedom of Information Act requests and a lawsuit to force the department's compliance with the public access law.

Motions for summary judgment from both the tribe and the respondents - Interior and its named officials - were filed last fall and are pending in front of federal District Court Senior Judge Peter Dorsey.

The tribe's motion for summary judgment argues, in part, that the RFD is invalid because Cason was not authorized to issue it. It further argues that former Interior Secretary Gale Norton violated both the Appointments Clause of the Constitution and the Vacancy Reform Act when she made a ''temporary redelegation'' of the authority of the assistant secretary of Indian affairs to Cason in February 2005, after former AS-IA Dave Anderson resigned, because Cason was not a ''PAS'' - a presidential appointee confirmed by the Senate.

The Vacancy Reform Act requires the principal deputy assistant secretary for Indian affairs to exercise the authority of the assistant secretary when that position is vacant, as it was during fiscal year 2004 - 05. Olsen, who was already the acting principal deputy, was the person required by law to assess and decide the tribe's RFD, the tribe's attorneys say.

Both Interior and Olsen himself in a sworn declaration deny that he was the acting principal deputy until June 9, 2006 - around eight months after Cason issued the RFD - a perplexing denial in view of the scores of documents addressed to or signed by Olsen as acting or principal deputy that are posted on Interior's Web site or were accessed through the FOIA requests.

''In his own sworn Declaration [of Oct. 31, 2007] to this Court ... Mr. Olsen denied ever even having been designated the Acting PD AS-IA prior to June 2006. In reply, counsel of the Tribe presented the Court with a wealth of information showing that Mr. Olsen's denials flew in the face of the then available public record,'' attorney Thomas Murphy, of Cowdery, Ecker & Murphy, wrote in the motion.

Believing that Interior's own records would ''further demonstrate the misleading nature'' of Interior's claims, the tribe's attorneys sought Olsen's personnel file, documents signed and/or created by Olsen in his capacity as acting principal deputy, and documents referring to him as such.

Interior stonewalled the request.

''Instead of complying with its statutory obligation to provide a response to these FOIA requests within 20 days, DOI engaged in indefensible obstruction and delay,'' Murphy wrote. Facing a second lawsuit, Interior complied after five months, providing more than 550 pages.

Among the significant documents are Olsen's ''Senior Executive Service Performance Plan'' covering Oct. 1, 2004 to Sept. 30, 2005, in which he is evaluated in his position as ''Acting Principal Deputy Assistant Secretary Indian Affairs,'' and his ''Performance Summary Template'' which describes him as the ''Principal Deputy Assistant Secretary.''

The rating official on both documents was ''none other than James Cason,'' the attorney noted.

The FOIA requests also yielded documents in which Olsen uses the title principal deputy AS-IA or acting principal deputy AS-IA in materials referring to the tribe's petition for recognition, responding to members of Congress, acting as the senior contact and providing certification to the court in the Cobell litigation, and testifying before Congress.

Olsen also communicated as principal deputy with Connecticut Attorney General Richard Blumenthal, who led the state's fierce opposition to the STN, and with Margaret Spellings, assistant to the president for domestic policy (now secretary of education), who had met privately with Connecticut Republican Rep. Chris Shays in his efforts to seek the president's help in convincing Interior to reverse STN's recognition, according to court filings.

Given all the materials presented, the attorney wrote, ''There can be no credible dispute that Michael Olsen served at all relevant times as the acting principal deputy AS-IA. The federal respondents' efforts to paint a contrary picture of his role is inaccurate and, frankly, unworthy. The responsibility for making the RFD should therefore, by operation of law, have fallen to him pursuant to the Vacancy Reform Act.''

The tribe asks that the new material be included in its motion for summary judgment.

Interior declined to comment for this story.