Post by blackcrowheart on May 17, 2007 13:40:33 GMT -5
Schaghticokes seek more discovery
By: Kathryn Boughton
Another round of maneuvering is underway in the Schaghticoke Tribal Nation's efforts to obtain federal recognition. The STN filed in mid-January for permission to expand its inquiry into alleged improper contact with and influence over decision-makers at the Department of the Interior, the agency that provides federal recognition for Indian Tribes.
Such recognition brings with it many benefits, including the right to operate casinos. The STN has acknowledged its desire to open a casino somewhere in Connecticut.
The STN asserts that the Connecticut's Congressional delegation exerted "improper political pressure" over the DOI and that the lobbying firm Barbour Griffin and Rogers, LLC, hired by TASK [Town Action to Save Kent], had improper contact with decision-makers. Under the rules established by a federal judge when granting an expedited review of the STN application for recognition, both sides agreed not to contact decision makers without advising the other side in writing prior to the contact.
The Indian Board of Appeals, a division of the Interior Department, first approved the STN application in 2004, a decision hotly contested by Connecticut Attorney General Richard Blumenthal, many municipalities-including Kent where the tribe has it reservation-and a number of private entities. The appeal was successful and in October 2005 the favorable decision was reversed and the tribe denied. That "final determination" has been appealed to federal court, where the judge has the power to uphold the final determination, send the issue back to the Bureau of Indian Appeals or to make a unilateral decision approving recognition.
In November 2006 the United States District Court in New Haven agreed with the STN that evidence submitted by STN about contact between state and federal officials and BOI representatives "raised some questions." The court authorized limited depositions of former Interior Secretary Gale Norton and Associate Deputy Secretary James Cason. The depositions were taken Jan. 4.
The STN has based its current request on those depositions, arguing that Secretary Norton "acknowledged in no uncertain terms" that she believes the original positive decision for the STN was " fair and reasonable."
"Given that the subsequent decision reversing the Tribe's recognition was made with the involvement of many of the same staff members, it has become all the more important to understand the forces and influences brought to bear on the people who were required to change their mind," attorneys for the STN argue in their motion.
They ask for "targeted discovery from Barbour Griffth and Rogers; limited depositions of DOI employees David Bernhardt, Lee Fleming and Barbara Coen, a supplemental e-mail search by James Cason and in-camera review of a file held by Gale Norton.
The tribe concedes that both former Secretary Norton and Mr. Cason denied any contact with BGR or TASK when they were deposed. "Those denials stand in stark contrast to the record obtained to date from TASK and BGR," the petition asserts, "and cry out for further review ... ."
The petition alleges that the tribe has obtained documents detailing communications between TASK and BGR and other correspondence that TASK or the lobbying firm sent to state and local officials. "... These few e-mails reveal the BGR did precisely what it was paid handsomely to do," the petition states. "It lobbied Congressional, Administration and State officials to undermine the Tribe's recognition. Several of the known messages describe BGR's contact with officials of the Department of the Interior."
"In short," the STN continues, "the denials by Ms. Norton and Mr. Cason of contact with BGR and TASK are starkly different from the ... e-mail messages ... . Further inquiry is therefore needed ... ."
State's Attorney General Richard Blumenthal opposes the motion for further discovery on behalf of the intervenors. In his memorandum in opposition to the petitioner's motion, he said, "Despite having been afforded two opportunities to conduct discovery to support its allegations of improper conduct and having come up empty-handed, the petitioner asks the Court for yet another try. Particularly in light of the unequivocal testimony in recent depositions ... of former Secretary Gale Norton and Associate Deputy Secretary James Cason ... that they themselves were not pressured by any improper congressional or other influence, and were not aware that any other person at the Department of the Interior was improperly influenced, the petitioners fall far short of the strong showing necessary to justify any further discovery in this matter. ... Rather than produce even a shred of evidence supporting the claim of improper influence, the petitioners' extensive and repeated efforts to prolong this litigation through costly and burdensome discovery has instead validated the fair and objective nature of the agency's review resulting in the reconsidered final determination."
Mr. Blumenthal said the petitioner's motion for more discovery is based on data that has already been reviewed by the court and that has not yielded the corroborating evidence the STN seeks. Such evidence does not exist, he asserts.
"The petitioner has been given the extraordinary opportunity to depose agency decision -makers on an administrative decision that ordinarily is subject to judicial review based solely on the record," he said. "This has resulted in no evidence supporting its allegations of improper conduct in the issuance of the reconsidered final determination. Indeed, it has produced just the opposite-express testimony that improper extraneous factors did not influence the issuance of the reconsidered final determination."
He noted that the earlier court ruling limited discovery to depositions of Ms. Norton and Mr. Cason and expressly rejected depositions of David Bernhardt and Lee Fleming of the DOI and Loren Monroe of Barbour Griffith & Rogers LLC because "an extensive administrative record was created at the time of the agency's decision," and because the petitioner had not "presented evidence of any bad faith or improper behavior on the part of any of these agency officials ... ."
Mr. Blumenthal rejects the idea that improper conduct caused Ms. Norton and her staff to overturn the first "reasonable" decision in favor of the tribe. "The petitioner wants the Court to infer that the subsequent denial of recognition ... had to have been the result of improper conduct. This is entirely specious and disingenuous," he wrote.
He said the petitioner consistently overlooks the fact that the Interior Board of Indian Appeals, a review board made up of independent administrative law judges, determined that the original positive determination improperly relied on Connecticut's recognition of the STN to make up for serious deficiencies in the tribe's application. The STN had failed to satisfy two of the seven criteria for federal recognition.
The IBIA's decision was the critical turning point in the administrative process, Mr. Blumenthal argued, and "the petitioner has been and continues to be completely unable to offer any evidence of any improper conduct or bad faith relating to the IBIA's decision."
The Attorney General's memorandum asks for oral arguments and that the court issue a scheduling order for the STN to enter its motion for summery judgment and supporting brief within 45 days of the court's disposition of the motion for additional discovery. The intervenors would then have 15 days to file their motions in answer.
By: Kathryn Boughton
Another round of maneuvering is underway in the Schaghticoke Tribal Nation's efforts to obtain federal recognition. The STN filed in mid-January for permission to expand its inquiry into alleged improper contact with and influence over decision-makers at the Department of the Interior, the agency that provides federal recognition for Indian Tribes.
Such recognition brings with it many benefits, including the right to operate casinos. The STN has acknowledged its desire to open a casino somewhere in Connecticut.
The STN asserts that the Connecticut's Congressional delegation exerted "improper political pressure" over the DOI and that the lobbying firm Barbour Griffin and Rogers, LLC, hired by TASK [Town Action to Save Kent], had improper contact with decision-makers. Under the rules established by a federal judge when granting an expedited review of the STN application for recognition, both sides agreed not to contact decision makers without advising the other side in writing prior to the contact.
The Indian Board of Appeals, a division of the Interior Department, first approved the STN application in 2004, a decision hotly contested by Connecticut Attorney General Richard Blumenthal, many municipalities-including Kent where the tribe has it reservation-and a number of private entities. The appeal was successful and in October 2005 the favorable decision was reversed and the tribe denied. That "final determination" has been appealed to federal court, where the judge has the power to uphold the final determination, send the issue back to the Bureau of Indian Appeals or to make a unilateral decision approving recognition.
In November 2006 the United States District Court in New Haven agreed with the STN that evidence submitted by STN about contact between state and federal officials and BOI representatives "raised some questions." The court authorized limited depositions of former Interior Secretary Gale Norton and Associate Deputy Secretary James Cason. The depositions were taken Jan. 4.
The STN has based its current request on those depositions, arguing that Secretary Norton "acknowledged in no uncertain terms" that she believes the original positive decision for the STN was " fair and reasonable."
"Given that the subsequent decision reversing the Tribe's recognition was made with the involvement of many of the same staff members, it has become all the more important to understand the forces and influences brought to bear on the people who were required to change their mind," attorneys for the STN argue in their motion.
They ask for "targeted discovery from Barbour Griffth and Rogers; limited depositions of DOI employees David Bernhardt, Lee Fleming and Barbara Coen, a supplemental e-mail search by James Cason and in-camera review of a file held by Gale Norton.
The tribe concedes that both former Secretary Norton and Mr. Cason denied any contact with BGR or TASK when they were deposed. "Those denials stand in stark contrast to the record obtained to date from TASK and BGR," the petition asserts, "and cry out for further review ... ."
The petition alleges that the tribe has obtained documents detailing communications between TASK and BGR and other correspondence that TASK or the lobbying firm sent to state and local officials. "... These few e-mails reveal the BGR did precisely what it was paid handsomely to do," the petition states. "It lobbied Congressional, Administration and State officials to undermine the Tribe's recognition. Several of the known messages describe BGR's contact with officials of the Department of the Interior."
"In short," the STN continues, "the denials by Ms. Norton and Mr. Cason of contact with BGR and TASK are starkly different from the ... e-mail messages ... . Further inquiry is therefore needed ... ."
State's Attorney General Richard Blumenthal opposes the motion for further discovery on behalf of the intervenors. In his memorandum in opposition to the petitioner's motion, he said, "Despite having been afforded two opportunities to conduct discovery to support its allegations of improper conduct and having come up empty-handed, the petitioner asks the Court for yet another try. Particularly in light of the unequivocal testimony in recent depositions ... of former Secretary Gale Norton and Associate Deputy Secretary James Cason ... that they themselves were not pressured by any improper congressional or other influence, and were not aware that any other person at the Department of the Interior was improperly influenced, the petitioners fall far short of the strong showing necessary to justify any further discovery in this matter. ... Rather than produce even a shred of evidence supporting the claim of improper influence, the petitioners' extensive and repeated efforts to prolong this litigation through costly and burdensome discovery has instead validated the fair and objective nature of the agency's review resulting in the reconsidered final determination."
Mr. Blumenthal said the petitioner's motion for more discovery is based on data that has already been reviewed by the court and that has not yielded the corroborating evidence the STN seeks. Such evidence does not exist, he asserts.
"The petitioner has been given the extraordinary opportunity to depose agency decision -makers on an administrative decision that ordinarily is subject to judicial review based solely on the record," he said. "This has resulted in no evidence supporting its allegations of improper conduct in the issuance of the reconsidered final determination. Indeed, it has produced just the opposite-express testimony that improper extraneous factors did not influence the issuance of the reconsidered final determination."
He noted that the earlier court ruling limited discovery to depositions of Ms. Norton and Mr. Cason and expressly rejected depositions of David Bernhardt and Lee Fleming of the DOI and Loren Monroe of Barbour Griffith & Rogers LLC because "an extensive administrative record was created at the time of the agency's decision," and because the petitioner had not "presented evidence of any bad faith or improper behavior on the part of any of these agency officials ... ."
Mr. Blumenthal rejects the idea that improper conduct caused Ms. Norton and her staff to overturn the first "reasonable" decision in favor of the tribe. "The petitioner wants the Court to infer that the subsequent denial of recognition ... had to have been the result of improper conduct. This is entirely specious and disingenuous," he wrote.
He said the petitioner consistently overlooks the fact that the Interior Board of Indian Appeals, a review board made up of independent administrative law judges, determined that the original positive determination improperly relied on Connecticut's recognition of the STN to make up for serious deficiencies in the tribe's application. The STN had failed to satisfy two of the seven criteria for federal recognition.
The IBIA's decision was the critical turning point in the administrative process, Mr. Blumenthal argued, and "the petitioner has been and continues to be completely unable to offer any evidence of any improper conduct or bad faith relating to the IBIA's decision."
The Attorney General's memorandum asks for oral arguments and that the court issue a scheduling order for the STN to enter its motion for summery judgment and supporting brief within 45 days of the court's disposition of the motion for additional discovery. The intervenors would then have 15 days to file their motions in answer.