SCHAGHTICOKE APPEAL IN 2ND CIRUIT COURT

Schaghticoke appeal moved forward in 2nd Circuit
By Gale Courey Toensing

Story Published: Jul 29, 2009

NEW YORK – The Schaghticoke Tribal Nation has lined up its arguments for a restoration of its federal acknowledgment in a final brief filed in June in appellate court.

Tribal attorney Richard Emanuel filed the tribe’s brief in the 2nd Circuit Court of Appeals June 8. It is a consolidated response to objections to the restoration of the tribe’s federal status by the defendants and interveners – the Interior Department and its officials, and Connecticut Attorney General Richard Blumenthal, respectively.

“I’m looking forward to presenting our arguments to the 2nd Circuit,” Emanuel said, but declined to discuss the details of the case. The court will likely hear arguments in the fall.

The BIA recognized STN in a Final Determination Jan. 29, 2004, then reversed itself 20 months later in an unprecedented Reconsidered Final Determination, taking away both the Schaghticoke and Eastern Pequot Tribal Nation’s federal recognition.

The 2nd Circuit Court appeal challenges a decision by U.S. District Court Senior Judge Peter Dorsey last August that denied the tribe’s Administrative Procedures Appeal of the RFD. That appeal claimed the recognition reversal was due to unlawful political influence by powerful politicians, an anti-Indian casino group and its lobbyist, Barbour Griffith & Rogers, now known as BGR, who violated federal laws, agency regulations, congressional ethics rules and court orders in trampling the tribes’ due process rights.

Dorsey’s ruling granted the defendants’ summary judgment request to dismiss the case, and denied the tribe’s summary judgment request to restore its federal acknowledgment, or appoint a magistrate judge or special master to determine the tribe’s status, or remand the issue to the Interior for further consideration.

In the introduction to his brief, Emanuel reviews the actions that took place in the time between the BIA acknowledgment and reversal of STN’s federal status: politicians’ calls for investigations, congressional hearings where the tribe’s federal recognition was attacked, violations by Blumenthal of an ex parte prohibition against communicating with federal decision makers, ex parte communications with the Interior Board of Indian Appeals by members of Congress, a threat by Virginian Rep. Frank Wolf to tell the president that then Interior Secretary Gale Norton should be fired if she didn’t reverse the tribe’s recognition, and the introduction of legislation by former Connecticut Congresswoman Nancy Johnson to terminate the tribe, which castigated by name former Assistant Secretary of Indian Affairs Aurene Martin.

“As Judge Dorsey stated (or perhaps understated) in his ruling on cross motions for summary judgment, ‘what followed the Final Determination in the backrooms of Washington is the subject of much concern to STN.’ It should be of much concern to this court too,” Emanuel wrote in his brief.

Emanuel uses Dorsey’s own words frequently to support the tribe’s claim of undue political influence.

He quotes Dorsey at length, for example, to refute “the adversaries” claim that the political influence activities were unimportant and ineffective because they took place during the three-month period between the Final Determination and the filing of requests for reconsideration.

“There is no question that throughout 2004 and 2005 the Connecticut Congressional Delegation, Connecticut state and local officials, and other public and private stakeholders, including a community organization in the Town of Kent which hired the Washington lobbying firm Barbour Griffith & Rogers to advocate on its behalf, lobbied the secretary of the Interior, the BIA, the White House, and even this court about reversing the acknowledgment decision,” Dorsey wrote in his ruling.

The brief argues that the appeals court can and should consider the tribe’s claim of political influence not only under an “actual influence” standard, but also under a stricter “appearance of bias” or “appearance of impropriety” standard.

Dorsey was involved in an appearance of bias or impropriety issue during the tribe’s appeal in his court. The tribe discovered through a Freedom of Information request a letter he had written to Connecticut Gov. Jodi Rell in August 2005, assuring her that he had extended a deadline to the tribe as a precautionary measure to avoid a possible future reversal of his decision – a decision he hadn’t made yet – by another court that might accept as valid the tribe’s claim of undue political influence.

“It reflects a caution intended to avoid a reversal by another court which might buy a due process argument,” Dorsey wrote.

The unnamed court is the 2nd Circuit Appeals Court where the tribe is now appealing Dorsey’s ruling. The tribe questions whether Dorsey’s letter meant he had prejudged the tribe’s due process claims unfavorably and was told he had not.

Emanuel also quotes Dorsey’s assertion that federal decision makers came under a tsunami of political pressure to reverse the STN’s federal recognition.

“There is no question that political actors exerted pressure on the department over the course of 2004 and 2005 in opposition to the Final Determination acknowledgment of STN, both publicly through congressional hearings and media publicity and privately through meetings and correspondence with the secretary and other agency officials,” Dorsey wrote.

But Dorsey denied STN’s appeal in part, he said, because federal decision makers said they were not influenced by the frenzy of political pressure that was brought to bear upon them.

That’s not good enough, Emanuel said in arguing that the district court misapplied the summary judgment standards.

“This court should not endorse the proposition that by the simple expedient of denying bias, a government official can wipe away all evidence of it. A political influence claim implicates mental processes like bias, motive and intent. Such issues are elusive, at best, and are difficult to prove. Bias and motive are generally proved by circumstantial evidence.”

Emanuel also refutes Blumenthal’s lengthy discussions on state recognition and marriage rates as a “stealth” harmless error argument – meaning that Blumenthal is saying even if error occurred in the process, it wasn’t “harmful” because the BIA reached the legally “correct” decision in its reversal.

In his argument against “harmless error,” Emanuel quotes the Supreme Court statement that, “Among those basic fair trial rights that can never be treated as harmless is a defendant’s right to an impartial adjudicator, be it judge or jury.”

Emanuel also cites fairness and justice as an imperative. The tribe respected the process and played by the rules as confirmed by Interior Inspector Earl Devaney in a 2004 report of an investigation he had conducted in response to requests from Connecticut Sens. Christopher Dodd and Joe Lieberman.

“Our investigation found no evidence to support the allegation that lobbyists or representatives for STN directly or indirectly influenced BIA officials to grant federal acknowledgment to STN,” Devaney wrote.

“Those rules now require that this court reverse the District Court’s judgment,” Emanuel wrote.