Schaghticoke seek discovery on appeal judge’s letter to governor

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KENT, Conn. – A letter written by the federal judge who is presiding over the Schaghticoke Tribal Nation’s appeal of the BIA’s unprecedented decision to rescind the tribe’s federal acknowledgement indicates that he intends to uphold the federal agency’s decision, and has taken precautionary measures to avoid a possible future reversal by another court that might “buy” into the tribe’s claim of due process violations.

Tribal attorneys have filed a motion asking U.S. District Court Senior Judge Peter Dorsey for clarification of the record and permission to conduct additional discovery regarding a letter he wrote to Connecticut Gov. Jodi Rell on Aug. 19, 2005 – five months before the tribe submitted its appeal of the BIA reversal.

Dorsey’s letter responded to one written by Rell dated July 11, 2005, in which she railed against the BIA and urged the judge to deny the STN’s request for a 30-day extension to the Scheduling Order set up by Dorsey’s court four years earlier.

The order provides a timeframe for the tribe’s federal recognition process, prohibits parties from contacting federal decision-makers without prior notice to all other parties and requires all documents in the record to be sent to all the parties.

“Your frustration and impatience is fully warranted,” Dorsey wrote to Rell.

Dorsey explained that the Scheduling Order was drawn up in consideration of the tribe’s right to due process, the BIA’s caseload, and the intervening parties’ right to a prompt resolution of the dispute.

The long delay in resolving the tribe’s federal recognition “no. 1, has stretched the tribe’s right to due process, no. 2, has given the BIA more time than it deserves, and no. 3 has deprived the parties of a reasonably prompt resolution,” Dorsey wrote to Rell.

Dorsey explained that he had agreed to the tribe’s request for extra time “to avoid any claim of infringement of the Tribe’s due process. I recognize this does not accommodate no. 3 above nor the view of your letter. It is intended to be a last extension of time upon the expiration of which the cases will be decided. It reflects a caution intended to avoid a reversal by another Court which might buy a due process argument.”

Rell’s letter was made part of the court record last year, as required by the Scheduling Order, but Dorsey’s letter was not. The letter surfaced recently through a Freedom of Information Act request.

“Neither the Tribe nor its representatives had previously seen the letter, and it was not filed with the Clerk’s Office,” the tribe’s attorneys wrote in their motion.

“Because their very recognition hangs in the balance, the members of the Tribe are concerned about: (1) whether the August 19, 2005, letter is the only such non-filed correspondence between the Court and a party to this action, and (2) whether the contents of that letter are fairly read to suggest the Court has prejudged unfavorably the Tribe’s due process claims – or other claims – in this action,” the attorneys wrote.

Rell declined to comment for this story.

Connecticut Attorney General Richard Blumenthal, who represents Rell and the state, said he only recently learned of the letter.

“My office never received this letter and only last month learned of its existence through Schaghticoke Tribal Nation attorneys. The governor’s office has told us that it received the letter, filed it and took no further action. My office will respond in court to challenge this motion for discovery at the appropriate time,” Blumenthal told Indian Country Today.

STN Chief Richard Velky and the tribe’s attorneys declined to comment for this story.

The tribe was federally recognized by the BIA in January 2004. After an appeal to the Interior Board of Indian Appeals by the state and other parties – and 18 months of relentless opposition by Rell; Blumenthal; the state’s congressional delegation; other state and local officials; and an anti-Indian, anti-casino citizens group and its powerful Washington, D.C., lobbyists – the BIA reversed the tribe’s federal status on Columbus Day last year. It was the first time ever that the BIA overturned its own previous positive decision.

The tribe appealed to Dorsey’s court on Jan. 12 to restore the tribe’s federal acknowledgement, citing violations of due process and improper political influence on the Interior Department. The appeal names Interior, former Interior Secretary Gale Norton, Interior Associate Deputy Secretary James Cason, the BIA, the Office of Federal Acknowledgement and the Interior Board of Indian Appeals as defendants.

The judge’s letter may add weight to the tribe’s claims.

Hundreds of pages of documents obtained in FOI requests point to a web of connections between Rell, the lobbyists, other state officials, governors in other anti-Indian casino states and other opponents, who bombarded federal decision-makers – including those in the White House – with requests to overturn the tribe’s federal status.

The tribe’s opponents were required to file all final documents with the BIA by June 30, 2005. But on July 11, 2005 – 11 days after the deadline – Rell sent Blumenthal a copy of her letter to Dorsey, asking the attorney general to include it “as part of your submissions to the court in opposing the requests from the BIA and the Schaghticoke.” Although the attorney general knew that Dorsey had already decided to grant the tribe the extension, on July 15, 2005, he submitted Rell’s letter to the court where it became part of the record and, therefore, available to federal decision-makers and other parties.

The tribe’s motion asks that Dorsey’s letter also be made part of the record and for permission to take supplemental discovery of the state of Connecticut concerning the letter. The request for discovery was not limited, meaning attorneys may seek both documents and depositions if the court approves the motion.

“The tribe has valid concerns about the undue influence exerted by the State of Connecticut and others on the [BIA’s] administrative process. Given that the August 19, 2006, letter can arguably be read to suggest that the Court was forecasting its views of the Tribe’s claims to the same representatives of the state, the Tribe would like to ensure that the record in this matter is complete,” the tribe wrote.

The attorneys want to find out if any other ex parte communications exist, if Dorsey’s letter was distributed to anyone, and whether anyone “used or attempted to use it to further influence the Department of the Interior’s administrative process.”