Petition for Writ of Certiorari — Schaghticoke Tribal Nation v. Salazar

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Supreme Cour

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No. 09-

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IN THE ~ AE CLERK

Supreme Court of the United States

(oe < U91433 MAY 24 2019

SCHAGHTICOKE TRIBAL NATION,

Petitioner-Appellant,

DIRK KEMPTHORNE, Secretary, Department of the

Interior, JAMES FE. CASON, Associate Deputy

' Secretary, Department of the Interior, U.S.

DEPARTMENT OF THE INTERIOR, BUREAU OF INDIAN

AFFAIRS, OFFICE OF FEDERAL ACKNOWLEDGMENT,

and INTERIOR BOARD OF INDIAN APPEALS,

Respondents-Appellees

THE KENT SCHOOL CORPORATION, STATE OF

CONNECTICUT, TOWN OF KENT, and

THE CONNECTICUT LIGHT AND POWER COMPANY,

Intervenors-Appellees

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

PETITION FOR A WRIT OF CERTIORARI

RICHARD EMANUEL *

601 Plymouth Colony

Branford, CT 06405

(203) 483-620 1

newtrials@comcast.net

* Counsel of Record Counsel for Petitioner

Wil SON-EPES PRINTING CO , ING (202) 789-0096 — WASHINGTON,D C 20002

QUESTION PRESENTED

cerliorar: Should be pranted to

the Courts of Appeal:

ca pe LiLmONneT &s

Cb amony

LOT) when rCOVICWIY

claim that undue political press

ly aflected or influenced a

itive adjudicative decision, must

also consider the petitioners ¢

Proce W aa violated by the app

Ly arising from thre

res olve ra |

on this

Due Pro

Dees has

federal admin

a federal

laim that

arance ol

political

TABLE OF CONTENTS

CDE EIUEGAICCE EPRUER IVY ceciscccncsssacssesscascens seasselaschuneere

oh A FIC er WON cs cdivcsdinss cca dis Ga deen cavens tone iaueeseasss

STITUTIONAL AND STATUTORY

PROVISIONS INVOLVED........ P

STATEMENT OF THE CASE ...................

Introduction and Overview: 275 Years of

State POCOMIIEIONE 5. onc csicccccccsceesessetecceves iaaeanes

1 ADMINISTRATIVE AND JUDICIAL

PROCEEDINGS (1975-2010)....0......0000.0..

A. 1975 through 2000 ...............cc.cecececseeess

B.A Federal Judge Assumes Control of

the ‘Tribe’s Cases (2000-2001)

©. The Negative Proposed Finding (PE)

GR 4 Ree neh eee at ern Ramer Rr eee

1). The Briefing Paper and Positive Final

Determination (FD) (Dec. 2003-Jan.

|” Sat eee aeT ae ie ME eit Maen Eten a ms

Kk. The Supplemental Transmittal ...........

Ii The Final Determination (FD) = is

Vacated and Remanded .......................

G. James I. Cason and the Reconsidered

Final Determination (RED) .................

Hl. The Petition for Review in the

Spee ree © Ene eae ee

re)

Hl.

TABLE OF CONTENTS — Continued

I. Discovery Proceedings in the District

Court

J. ‘The Summary Judgment Motions and

the District Court’s Ruling ..............

K. The Appeal to the Second Circuit........

LL. The Petition for Panel Rehearing and

for Rehearing f'n Bane............ cc cece eee.

THE “POLITICAL INFLUENCE”

CLAIM: AN OVERVIEW.................

A.'l'he Inspector General’s Investipra

tion: The Tribe Played by the Rules....

B. The Attorney General Violates an fx

PURGE FO ives ncadcascntnevecevexanaeinicsss

©. A Congressman Threatens the Secre-

tary of the Interior

D.The Schaghticoke Acknowledgment

Repeal Bill.......... PO RPA aR INL AT NEE RPE

Ie. Judge Dorsey’s Ex Parte Communica

tion with Governor Rell ...... sisaasguagwantns

HOW THE POLITICAL INFLUENCE

CLAIM WAS DECIDED ..........cccccvcc-cesecsess

Fa. Enh Ue EPRWGT aCe CAKE ccna kccs caccvcsecncecncess

A. The Acknowledgment Process | is

Adjudicative........

TABLE OF CON TIENTS- -Continued

B. ‘The Second Circuit’s Town of Orange

PE IE sons y vcs ascascusnecehtedasnebscdinenosndaies

CONCLUSION ..

APPENDIX

APPENDIX A— Opinion in Schaghticoke

Tribal Nation v. Kempthorne, 587 F.Supp

2d 389 (2008) ...

APPENDIX B — Judgment (Aug. 27, 2008).....

APPENDIX C- Opinion in Schaghticoke

Tribal Nation v. Kempthorne, 587 F.3d 1382

(et. 39, ZOOS). .ccciss

APPENDIX D— Amended opinion in Schagh

ticoke Tribal Nation v. Kempthorne (Nov.

4, 2009)

APPENDIX E — Petition for Panel Rehearing

and Petition for Rehearing kn Bane ........

APPENDIX F — Order denying petitions for

panel rehearing and for rehearing en banc

CGS a, ED sire kotvacivasvcensdssecitorin erin en

APPENDIX G — Order granting Petitioner’s

motion to stay issuance of mandate

(March 24, ZOTO)......<.escccsces:

APPENDIX H — Letter from Governor M

Jodi Rell to Judge Peter C. Dorsey (July

ee Sausveeires conbasaas

APPENDIX I— Letter from Judge Peter C.

Dorsey to Governor M. Jodi Rell (Aug. 19

1S ere

02:

O&:%

115:

118;

TABLE OF CONTENTS —Continuecs

Paap

APPENDIX J scheduling Order (May &

2004) 120a

APPENDIX K — Order of Consolidation (Oct

3, 2005) ; 129a

APPENDIX lL, — Notice of Final Determina

tion in Federal Register (eb. 5, 2004) bsla

APPENDIX M — Notice of Reconsidered Final

Determination in Federal Kepister (Oct

14, 2005) l4e%a

APPENDIX N — Schaghticoke Acknowledg

ment Repeal Act of 2005 b57a

Vil

TABLE OF AUTHORITIES

CASES Pape

Aetna Life Insurance Co. v. Lavoie, 475

Ry ec ee IE Pik on ib cas sic dciarccavindeusacnand secnannes 36

Association of Data’ Processing Service

Organizations, Inc. v. Board of Crover

nors Of Federal Reserve System, 745 F.2d

Ode CERNE. RON siittuiridciastsesensscnis 4

ATX, Inc. v. United States Department off

Transportation, 41 F.3d 1522 (D.C. Cir

EE goss la sucal vn ebadavnnsniveasndaalacnindeaskaniciexiseies 36

Caperton v. A.T. Massey Coal Co., Ine.,

U.S... 129 S.Ct. 2252 (2009) coo cocoee- 32, 37-38

Chemung County v. Dole, 804 F.2d 216

(SSE Lae; | IUD sei'vivndesaasedeisavarvestssceistns Caco"

Citizens to Preserve Overton Park, 401

Pe. EG. fg ) See eee pe nner repr teny 16

D.C. Federation of Civic Associations et al

v. Volpe, 459 F.2d 1231(D.C.Cir, 1971),

cert. dented, 405 U.S. 1030 (1972)............ 35

DCP Farms, et al. vo. Yeutter, 957 F.2d

1183 (5th Cir.), cert. denied, 506 U.S

eee a Os oo eee ss 35

Esso Standard Oil Co. (Puerto Rico) v

Lopez-Freytes, 522 F.3d 1386 (1st) Cir

ME ott sce ot asian saa seedy One aa keds erat ai Mb aan 34

Fund for Animals, Inc. v. Rice, 85 F.3d 5:

ES Ri An sD hain os cd cive cans eatp iene ieniesisieaass 35

Gulf Otl Corporation ov. Federal) Power

Commission, 563 F.2d 588 (Srd Cir.

rae a aa eee tae epee eh 34

In re Federal’ Ack an ‘dpment of the

Historical Eastern Pequot Tribe, 41 IBIA

DCM oui es cxsuuncccuvewscdss Ficdunaeaseneaseadn ch ai aaunes i:

Vill

TABLE OF AUTHORITIES —Continued

In re Kederal Acknowledgment of the

Schagphticoke Tribal Nation, 41 |BIA 30

(2005) here

In re Murchison, 3849 U.S. 1388 (1955).....

Joint Anti-Fascist Refugee Committee vu

McGrath, 341 U.S. 323 (195) ).......

Koniag, Inc., The Village of Uyak vu

Andrus, 580 F.2d 601 (D.C. Cir.), cert

denied, 439 U.S. 1052 (1978)

Lake v. Reno, 226 F.3d 141 (2nd Cir.

2000), overruled in part by Juan Anh

Neuyen vo. INS, 5383 U.S. 53 (2001)..........

Latecoere International, Ine. United

States Department of the Navy, 19 ¥.3d

1342 (lith Cir. 1994) te

Monteson v. Commodity Futures Trading

Commission, 996 F.2d 852 (7th Car

1993) rébdpvaenbaaks en enbianaset eee aeaeinaaa

Morelite Construction Corporation v New

York City District Council Carpenters

Benefit Funds, 74% F.2d 79 (2nd Cir

of New York, 534 F. Supp. 279 (S.D_N_Y.),

affd, 672 F.2d 292 (2nd Cir.), cert

dismissed, 456 U.S. 920 (1982) ................

Offutt v. United States, 348 U.S. 11 (1954).

Peter Kiewit Sons’ Co. v. United States

Army Corps of engineers, et al., 714 ¥.2d

sion, 354 F'.2a 952 (oth Cir. 1966).......... ;

Pape

TABLE OF AUTHORITIES —Continued

Portland Audubon Society v. The EHKndan

gered Species Committee, 984 F.2d 15384

(9th Cir. 1993)... , mt

Professional Air Traffic Controllers Organ

wation v. Kkederal Labor Relations Au

thority, 672 F.2d 109 (D.C.Cir. 1982)....

Radio Association on Defending Atrwave

Rights, Inc. v. United States Departinent

of Transportation, 47 V.3d 794 (6th Cir)

cert. dented, 516 U.S. &11 61995)

Schaghticoke Indians, et al., v. Kent School

Corporation, et al., No. 2:75-ev-00125

Schaghticoke Tribal Nation vo. Harrison

264 Conn. 829, 826 A.2d 1102 (2003)

Schaghticoke Tribal Nation v. Kempthorne

987 FF. Supp. 2d 389 (D. Conn, 2008) ..

Schaghticoke Tribal Nation v. Kempthorne

587 I. 3d 1382 (2nd Cir. 2009)....

Schaghticoke Tribal Nation ovo. Kent School

Corporation, Ine., et al., No. 3:9%-e,

O1113-PCD...... | - Ret eaves

Schaghticoke Tribal Nation vw. United

States of America and The Connecticut

Light and Power Company, et al., No

3:00-cv-00820-PCD .... ae

Sterra Club vo. Costle, 657 F.2d 298% (DC

far. 1981).....

Sokaopon Chippewa Community (Mol

Lake Band of Lake Superior Chippewa)

et al. v. Babbitt, 961 FB. Supp. 1276

(W.1D.Wis. 1997)

TABLE OF AUTHORITIES —Continued

Pape

State of Caltfornia ex rel. State Water

Resources Control Board vo lederal

nergy Regulatory Commission, G66

2d 1541 (9th Cir. 1992)... 35

Town of Orangetown vo. Ruckelshaus, 740

2d 185 (2nd Cir. 1984) 18) 841, 43, 84, 36

Tumey v. Ohio, 2738 US. 510 61927) a7

United States of America v, 43.47 Acres of

Land, More or Less Situated in the

County of Litchfield, Town of Kent, et

al . B55 I Hupp 549. 552 (2D. Conn

1994). os 4

United States v. Florida East Coast Ry

C'o., 410 U.S. 224 (1973) ..... iS

United States v. Mead Corporation, 5338

GR Se yr Ok i) ) eee irs pened Rah 32

Wechsler v. Steinberg, 733 ¥.2d 1054 (2nd

Ey Re | Re eo man fen teree 5)

Withrow v. Larkin, 421 U.S. 35 (1975) oe, of

CONSTITUTIONAL PROVISIONS

United States Constitution, Amendment V 2

STATUTES AND COURT RULES

20d Ua B .BRe OIG Coed ic wencaciecsevnvaccovestes #6 Os Oe 2h 2 ee

Conn. Gen. Stat. § 47-59a 4.6

59 Fed. Rey. 12140 (March 15, 1994) 5

67 ed. Reg. 76184 (Dec. 11, 2002)....... 1Q

69 Ired. Rep. 5570 (eb. 5, 2004)..... 12

70 Fed. Reg. 60101 (Oct. 14, 2005) ... 1D

Kules of the Supreme Court, K. 10(a) 36

5 U.S.C. § 551....... i pedate sy Saceas tides 1D, 33

5 U.S.C. § 706 ;

TABLE OF AUTHORITIES Clontiunued

A >. 45o0(a) >

A >. ( 124 |

>t S.( 129] 6

MISCELLANEOI

ABA Annotated Model Cod of Judicial

CConduct ‘

Hearing before the House Committee on

Crovernment KRetorm, Betting on Tran

parency: Toward Fairn and Integrity

in the Interior Departments Tribal Le:

opnition Proce lO&Sth Cong., 2d Se

(2OO4 19. Pb

liearing betore the Senate ¢

Indian Vite hederal

LO9Uth Cong., Ist Se (2005) 9

House Ethics Manual, Committee on Stan

dards of Official Conduct, U.S. House of

Onlmillee Of

Ker ornition

Representative 110th Conpre vAG

‘1 ion (Z00BGB) )

()versight Hearing before the House Com

mittee on Kesource kederal Recopni

tion and Acknowledgment Proc by the

Bureau of Indian Affati lOSth Cong

2d de (2004) IY

haphticoke Acknowledgment Repeal Act

of 2005 (LK 1 10)4) LO9th Conegre ist

( (ZU0U0D

IN THI

Supreme Court of the Anited States

No. 09

SCHAGHTICOKE TRIBAL NATION,

Petitioner-Appellant,

DIRK KEMPTHORNE, Secretary, Department of the

Interior, JAMES EK. CASON, Associate Deputy

secretary, Department of the Interior, U.S

DEPARTMENT OF THE INTERIOR, BUREAU OF INDIAN

AFFAIRS, OFFICE OF FEDERAL ACKNOWLEDGMENT,

and INTERIOR BOARD OF INDIAN APPEALS,

Respondents-Appellees

THE KENT SCHOOL CORPORATION, STATE O}

CONNECTICUT, TOWN OF KENT, and

THE CONNECTICUT LIGHT AND POWER COMPANY,

[ntervenors Appellee:

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

PETITION FOR A WREP OF CERTIORARI

The Petitioner, Schaghticoke ‘Tribal Nation, res

pectfully prays that a writ of certiorari issue to

review the judgment and opinion of the United State:

Court of Appeals for the Second Circuit, rendered on

October 19, 2009, and amended on November 4, 2009

OPINIONS BELOW

The ompinal opinion of the United States Court of

Appeals for the Second Circuit, in Schaghticoke Tribal

age Vv. Kempthorne et al., is officially reported at

587 F.3d 132 (Oct. 19, 2009) (Cabranes and Miner,

Circuit dudpes, and Korman, District Judge) (per

curtam), and is reproduced in the Appendix to this

petition, at 62a-67a. The Court of Appeals amended

4, 2009, and the amended

opinion is reproduced in the dis Ste at 68a-7T5a.

The District Court’s Ruling on Cross-Motions for

Summary Judgment Clon. Peter C none’ is offi

cially reported at 587 F. Supp. 2d 389 (2008), and is

reproduced in the Appendix at 1a-59a.

its opinion on November

JURISDICTION

The judgment of the United States Court of Appeals

for the Second Circuit was entered on October 19,

2009. On November 25, 2009, the Petitioner filed a

combined Petition for Rehearing and Vetition for

Kkehearing £én Banc. See Appendix 76a-110a. The

Court of Appeals denied the petitions in an Order

issued on February 24, 2010. See Appendix Illa

1i2a. On March 24, 2010, the Court of Appeals

pranted the Petitioners motion to stay issuance of the

mandate until May 25, 2010. See Appendix Ilda

l14a. The jurisdiction of this Court 1s invoked

pursuant to 28 U.S.C. § 1254.

CONSTYIPUTIONAL AND

STATUTORY PROVISIONS INVOLVED

The Fifth Amendment to the Constitution of

the United States provides in pertinent part: ~

nor shall any person ... be deprived of hfe, liberty, o1

property, without due process of law.

”

5 U.S.C. § 706 provides in pertinent part:

“To the extent necessary to decision and when

presented, the reviewing court shall decide all

relevant questions of law, interpret constitutional

and statutory provisions, and determine the

meanimy or applicability of the terms of an agency

action. ‘The reviewing court shall

(1) compel agency action unlawfully withheld

or unreasonably deluyed; and

(2) hold unlawful and set aside agency action,

findings, and conclusions found to be

’

(A) arbitrary, Capricious, an abuse of discre-

tion, or otherwise not in accordance with law;

(3) contrary to constitutional right, power,

»”

privilege, or immunity....

25 U.S.C. § 177 provides: “No purchase, grant,

lease, or other conveyance of lands, or of any title or

claim thereto, from any Indian nation or tribe of

Indians, shall be of any validity in law or equity,

unless the same be made by treaty or convention

entered into pursuant to the Constitution. Every per-

son who, not being employed under the authority of

the United States, attempts to negotiate such treaty

or convention, directly or indirectly, or to treat with

any such nation or tribe of Indians for the title or

purchase of any lands by them held or claimed, is lia-

ble to a penalty of $ 1,000. The agent of any State

who may be present at any treaty held with Indians

under the authority of the United States, in the pres-

ence and with the approbation of the commissioner of

the United States appointed to hold the same, may,

however, propose to, and adjust with, the Indians the

compensation to be made for their claim to lands

within such State, which shall be extinguished by

treaty.”

28 U.S.C. § 1254 provides in pertinent part:

“Cases in the courts of appeals may be reviewed

by the Supreme Court by the following methods:

(1) By writ of certiorari granted upon the

petition of any party to any civil or criminal

case, before or after rendition of judgment or

»”

decree;. ...

Conn. Gen. Stat. § 47-59a provides:

“(a) It is hereby declared the policy of the state

of Connecticut to recognize that all resident

Indians of qualified Connecticut tribes are consi-

dered to be full citizens of the state and they are

hereby granted all the rights and privileges

afforded by law, that all of Connecticut's citizens

enjoy. It is further recognized that said Indians

have certain special rights to tribal lands as may

have been set forth by treaty or other agreements.

(b) The state of Connecticut further recognizes

that the indigenous tribes, the Schaghticoke, the

Paucatuck Eastern Pequot, the Mashantucket

Pequot, the Mohegan and the Golden Hill

Paugussett are self-governing entities possessing

powers and duties over tribal members and res-

ervations. Such powers and duties include the

power to: (1) Determine tribal membership and

residency on reservation land; (2) determine the

tribal form of government; (3) regulate trade and

commerce on the reservation; (4) make contracts,

and (5) determine tribal Jeadership in accordance

with tribal practice and usape.”

STATEMENT OF THE CASE

This petition arises from a twenty-nine-year quest

by a Connecticut) Indian tribe, the Schaphticoke

Tribal Nation (STN or Tribe), to attain federal

“acknowledgment.” It presents an issuc that is far

from being uniquely “Indian.” In fact, this is an

administrative Jaw case. The Petitioner’s principal

contention is that in the context of a federal admin-

istrative edjudicative decision, a litigant’s due pro

cess nmght to a fair hearing may be violated by the

“appearance of bias” or impropriety. [tl is an issue

that can affect any litigant in any adjudicative

proceeding before any federal ayency.

As explained infra, in January 2004 the Petitioner

received a favorable decision (the Final Determina-

tion, or ID) on its petition for federal acknowledg-

ment. But that decision triggered an avalanche of

political opposition, based on politicians’ and citizens’

fears of a third Indian casino’ in the Constitution

State. Twenty months later, in October 2005, the

Sureau of Indian Affairs (BIA) issued a Reconsidered

Final Determination (RFD) denying federal acknowl-

edgment. Such a rescindment is exceedingly rare.

Following the rejection of its petition for acknowl-

edpgment, the Tribe filed a Petition for Review in the

United States District Court for the District of Con-

necticut. That Petition claimed, inter alia, that the

RFD was “arbitrary and capricious”; that the RFD

was the result of undue political influence; and that

' Foxwoods Resort Casino is run by the Mashantucket Pequot

‘Tribe, which was recognized by Congress in 1983. See 25 U.S.C.

§ 1751 et seq. The Mohegan Sun Casino is operated by the

Mohevan Vribe, which was acknowledped under the regulations

in 1994. See 59 Fed. Reg. 12140 (March 15, 1994)

the RID had been issued by an unauthorized decision-

maker. The District Court decided the Petition for

keview by directing the parties to file cross-motions

for summary judgment. ‘The Court denied the Peti-

tioner’s motion for summary judgment, and granted

the cross-motions for summary judgment filed by the

Respondents and Intervenors.

The Tribe appealed to the United States Court of

Appeals for the Second Circuit, invoking its appellate

jurisdiction under 28 U.S.C. § 1291. In that appeal,

the Tribe abandoned its challenge to the merits of the

RIED, and challenged only the fairness of the process

by which the RFD was reached. Specifically, the

‘Tribe claimed that the RFD resulted from undue (and

improper) political influence, or from the appearance

of bias, and that the RFD was issued by an unautho

rized decisionmaker. The case was argued on October

8, 2009, and on October 19, 2009, the Court of

Appeals issued a per curiam opinion rejecting: the

Tribe’s claims. (An amended per curtam opinion was

issued on November 4, 2009.) The Tribe’s petitions

for panel rehearing and for rehearing en banc, were

denied on February 24, 2010. See Appendix 76a-110a.

Introduction and Overview:

275 Years of State Recognition

There is no question about the ‘Tribe’s historical

pedigree. The first “Scatacook” settlement was estab-

lished in the early eighteenth century, near the

banks of the Housatonic River, in the Town of Kent,

Connecticut, and the Connecticut Colony first reserved

land for the Tribe’s use in 1736. By statute, Connecticut

recognizes the ‘Tribe as one of five “indigenous tribes”

that are “self-governing entities possessing powers

and duties over tribal members and reservations.”

Conn. Gen. Stat. § 47-59a(b). As the Connecticut

Supreme Court has noted, “|t}he Schaghticoke are a

state-recognized tribe of Indians who possess a state-

recognized reservation in Kent.” Schaghticoke Tribal

Nation v. Harrison, 264 Conn. 829, &31, 826 A.2d

1102 (2003).

Despite state recognition, the Tribe sought federal

acknowledgment from the Department, since acknowl-

edygment “is a prerequisite to the protection, services,

and benefits of the Iederal povernment available

to Indian tribes by virtue of their status as tribes.” 25

CFR. $683.2. Once acknowledged, a tribe “is entitled

to the immunities and privileges available to other

federally acknowledged Indian tribes by virtue of

their government-to-government relationship with

the United States as well as the responsibilities,

powers, limitations and obligations of such tribes.” Jd.

Of special importance in this case, those protec

tions, benefits, and immunities include the ability to

prosecute and defend claims concerning tribal lands,

pursuant to the Indian Nonintercourse Act, 25 U.S.C.

8 177. It was land that provided the imperative for

the Tribe’s filing of a petition for acknowledgment in

1981.

Now, however, the Tribe’s request for federal

acknowledgment is overshadowed by “the proverbial

OO pound gorilla.” Lake v. Reno, 226 F.8d 141, 144

(2nd Cir. 2000), overruled in part by Tuan Anh Nguyen

v. INS, 533 U.S. 53 (2001). The gorilla in this case is

the “right” of a federally acknowledged tribe to enter

into a gaming compact with a state, in order to

operate a gaming casino, under the authority of the

Indian Gaming Regulatory Act, 25 U.S.C. § 2701-2721,

enacted in 1988. As the District Court noted, “the

cultural climate of the last dozen years has created a

tendency to equate tribal acknowledgment with casino

development.” Ruling on Cross-Motions for Summary

Judgment, at Appendix 19a, n.4.

[t is important to emphasize that this petition is

not “factbound.” Nor does it involve the application of

settled doctrine to specific facts. The factual exposi

tion that follows is intended to illustrate why an

“appearance of bias” standard—a standard commonly

recopnized and applied in the judicial system —1s so

essential to maintaining the inteprity of adjudicative

(quasi-judicial) decisions in the federal administrative

process.

In Section | infra, the Petitioner reviews the pro

ceedings to date in the agencies and courts below.

Section JI provides a summary of the political events

that fueled the “political influence” claim. In Section

11, Petitioner explains how that claim was raised

and decided in the courts below.

I. ADMINISTRATIVE AND JUDICIAL PRO-

CEEDINGS (1975-2010)

A. 1975 through 2000

On December 14, 1981, the Tribe filed a Letter of

Intent (ander 25 C.F_R. §& 83.4) requesting acknowl-

edgment as an Indian tribe. The Tribe was a plaintiff

in three land claim actions (filed in 1975, 199%, and

2000*%) seeking restoration of original reservation

lands. It was also a defendant in a 1985 case brought

by the federal povernment, seeking to condemn a por

* Schaghticoke Indians, et al., v. Kent School Corporation, et al.,

No. 2:75-cv-00125-PCD (the 1975 land claium action); Schapht

coke Tribal Nation v. Kent School Corporation, Inc., et al., No

3:9%-ev-O11136-PCD (the 1998 land claim action); Schaphticoke

Tribal Nation v. United States of America and The Connecticut

Light and Power Company, et al., No. 3:00-cev-00820-PCD (the

2O00 land claim action)

tion of the reservation for use as part of the Appala

chian Trail.” Federal “acknowledgment” was deemed

essential in order for the Tribe to prosecute and

defend the land claims

The Tribe filed its first “documented” petition, see

25 C.F RR. & &3.6, on December 7

later il was still awaiting consideration.

1994, and six yeurs

B.A Kederal Judge Assumes Control of

the Tribe’s Cases (2000-2001)

The 1985 condemnation case and the 199% and

2000 land claim actions all were assigned to Judge

Peter ©. Dorsey of the United States District Court

for the District of Connecticut. Eventually, he ordered

the three cases consolidated “on the basis that the

cases involve common questions of fact and law.”

Order of Consolidation, at Appendix 129a-130a.

In 2000, because of inordinate delays at the BIA,

Judge Dorsey effectively “assumed control” of the

acknowledgment process with respect to STN’s peti

tion. See Ruling on Pending Motions, 2:85-cv-01078

(PCD) and No. 3:98-cev-01113 (PCD) (Sept. 11, 2000);

Ruling on Pending Motions, at 2 (Doc. #93 in 3:06-cv

00081 (PCD)) CNov. 3, 2006). The Court agreed to let

the BIA remain involved in the process, but instructed

all parties and amici to develop a Scheduling Order,

that he approved on May &, 2001. See Appendix

120a-128a.

The Scheduling Order established a framework for

the BIA’s determination of STN’s petition, set dead

lines, provided for discovery, mandated the creation

’ United States of America v. 43.47 Acres of Land, More or

less Situated in the County of latchfield, Town of Kent, et al.,

855 I. Supp. 549 (D. Conn, 1994) (the 1985 condemnation action)

of a database, and provided for judicial review of final

agency action. See id., at 12la-128a. The Scheduling

Order also prohibited ex parte communications be

tween non-federal parties or amici and certain offi-

cials within the Department of the Interior, including

the Seeretary of the Interior. /d., at 127a.

The Scheduling Order was significant beyond its

individual provisions, for it reflected the fact that

since May &, 2001, the federal administrative process

involuing ST'N’s petition for acknowledgment has

been under the ultimate supervision and control of a

federal judge—with all parties and amuct participal

ing in the process

©. The Neygative Proposed Finding (Dec.

2002)

STN’s petition for acknowledgment went on active

consideration on June 5, 2002. On December 5, 2002,

the Assistant Secretary-Indian Affairs (AS-IA), Neal

MeCaleb, issued a Proposed Finding (PF) recom-

mending against tribal recognition, notice of which

was published in the Federal Register. See 67 Fed.

Rey. 76184 (Dec. 11, 2002). The PF was based on a

determination that the STN did not satisfy the criteria

for “community” and “political influence or authority”

as required in 25 C_F_R. 83.7(b) and (ec), respectively

DD. The Briefing Paper and Positive Final

Determination (Jan, 2004)

additional comments

were filed by interested parties during the “comment

period.” The STN responded to the comments by

filing additional genealogical and historical data on

September 29, 20038.

Following issuance of the PF

On January 12, 2004, the Office of Federal

Acknowledgment (OFA), a subagency within the BIA,

prepured a “Briefing Paper” setting forth issues and

options with respect to the S'TN petition. Noting that

“Ithe Schaghticoke have been a continuously state

recognized tribe with a state reservation throughout

their history,” the Briefing Paper identified two fac

tors under the heading, “Unique Circumstances for

Mvaluation”:

There is no previous case where there is little or

no direct evidence of political influence within

the group for extended periods even though

the existence of community is well established

throughout the petitioner’s entire history, includ-

ing the two penods when evidence of political

processes 1s very limited.

There is no previous case where a petitioner

meets all of the criteria from earlhest sustained

contact for over 100 years, does not meet one of

the criteria during two separate, substantial his-

torical periods and then meets all of the criteria

for a substantial period up to the present

(iémphasis added.) /d.

After discussing four possible options, the OFA

recommended that the AS-JA “lalcknowledge the

Schaghticoke under the regulations despite the two

historical periods with litthe or no direct political

evidence, based on the continual state relationship

with a reservation and the continuity of a well

defined community throughout its history.” Id. ‘The

OFA recommended this option “on the grounds that if

is the most consonant with the overall intent of the

regulations.” ld.

Qn January 29, 2004, Principal Deputy AS-IA

Aurene M. Martin issued a Final Determination (ID)

acknowledging the S'TN as an Indian tribe within the

meaning of federal law. Notice of the decision was

published in the Federal Register. See 69 Ied. Rep

5570 (Feb. 5, 2004), at Appendix 13la-147a. The FD

concluded that the criteria of “community” and

“political influence or authority” had been met, inter

alia, by evidence of the historic state recognition of

the Schaghticoke by the State of Connecticut, as well

as evidence of a state-maintained reservation dating

back to colonial times. Secretary Norton participated

in discussions leading up to the FD, and she believed

that it was a correct decision reached on its merit:

Norton Dep., 47:1-48:10

In 2006, Aurene Martin stated that “|tlhe consen

sus among the OF A’s highly trained research staff

was that the STN Petition was among the best. and

most thoroughly researched petitions ever reviewed

by the BIA.” Decl. of Aurene M. Martin, 4 5 (July 1%,

2006).

Kk. The Supplemental Transmittal

On May 3, 2004, the State of Connecticut, the Kent

School Corporation, The Connecticut Light & Power

Company, the ‘Town of Kent, and other interested

parties, filed Requests for Reconsideration of the kD

with the Interior Board of Indian Appeals (“IBIA”)

In FE kederal Acknowledgment of the > hagphticoke

Tribal Nation, 41 IBIA 30, 31 n. 1 (62005). The Tribe's

opponents objected to the I°D’s use of “state recopni

tion” evidence, and claimed, inter alia, that the FD

apphed an improper methodology in its calculation of

marniage rates among STN members. /d., 84-35

’

On November 29, 2004, the STN submitted a

response to the Requests for Reconsideration. Just

three days later, on December 2, 2004—after STN

had filed its responsive brief—the OFA staff filed a

“Supplemental Transmittal” memorandum with the

IBIA, calling into question the marriage rate analysi:

it had used for the STN FD. Submitted by Barbara

Coen, an attorney in the Department’s Office of the

Solicitor, the Supplemental Transmittal was siposfi

caupl becuuse marrniapve rates are a relevant factor

in Satisfying one or more of the acknowledgment

criteria. The document conceded that there are

“different ways” of validly measuring “marriage

within a group,” but it asserted, inter alia, that the

calculation method used in the I'D was inconsistent

with precedent, and that the analysis “should not be

affirmed on these grounds absent explanation or new

evidence.”

I. The Final Determination is Vacated

and Remanded

On May 12, 2005, the IBIA vacated the FD and

remanded it to the AS-IA “for further work and

reconsideration.” Jn re Federal Acknowledgment of

the Schaghticoke Tribal Natton, 41 IBIA 30, 42 (2005)

That remand was based principally on a holding in

another case decided by the IBIA the same day, also

involving a Connecticut tribe, see Jn re Federal

Acknowledyment of the Htstorical Hastern Pequot

Tribe, 41 IBIA 1 (2005), in which the IBIA clarified

how evidence of “state recognition” could be used to

satisfy the criteria for federal acknowledgment

CG. dames E. Cason and the Reconsidered

Final Determination (RFD)

Qn August 9, 2001, Secretary Norton appointed

James I. Cason to serve as Associate Deputy Secre

tary of the Department. It was a political appoint

ment

On February 13, 2005, Secretary Norton delepated

the duties and authority of the office of the AS-IA to

(Cason, because the positions of AS-IA and Principal

Deputy AS-IA were both vacant.

The STN petition was Cason’s first acknowledg

ment decision. Cason Dep., 90:14-16; 102:10-12; 120:5-8

Prior to issuing the RFD, he “only had one substan

tive conversation” with OFA staff (on October 5,

2005) about the STN petition. Cason Dep., 32:1-15;

88:11-18; 96:19-21, 97:4-99:7; Cason Decl., J 7-9

OFA Director Fleming, OFA staff! members, and two

or three attorneys from the Solicitor’s Office, imnelud

ing Barbara Coen, were present at the meeting

Cason Dep., 88:19-90:11; 96:6-8; 102:17-103:9

As a result of Norton's meetings with the Con

necticut congressional delegation, see infra, Cason

knew the delegation was opposed to STN acknowl

edgment. Cason Dep., 34:19-35:6; 87:11-17, 68:2-12.

Since he “knew the [STN] issue was controversial,” at

the October 5 meeting he asked the staff if any of

them felt pressured to reach a particular result, and

received nepative responses. Cason Dep., 91:2-92:1;

100:17-101:3; Cason Decl., 9) 11 (Sept. 29, 2006). He

knew that if he went with the staff recommendation

and denied the petition, “the Schaghticoke would be

upset,” but that if he acknowledged STN, “the other

parlics would fake us lo task.” (emphases added.)

Cason Dep., 101:138-20

Cason essentially adopted the recommendation of

Kleming and the OFA stafl. Cason Dep., 102:13-16

On October 11, 2005, Cason issued the RED, declin

ing to acknowledge the STN. Cason Dep., 129:19-22.

Notice of the RIED was published in the Federal

RKtegister. See 70 Fed. Reg. GO101 (Oct. 14, 2005), at

Appendix 148a-156a. ‘The RFD concluded that the STN

did not satisfy the criteria for “community” under

83.7(b), or for “political influence or authority” under

&3.7(C)

H. The Petition for Review in the District

Court

The STN filed a Petition for Review (later amended)

in the District Court on January 12, 2006, pursuant

to the Administrative Procedure Act (APA), 5 U.S.C.

§ 551 et. seq., and the provisions of the Schedul

ing Order. See Appendix 125a-127a. The Petition

claimed that the RFD was arbitrary and capricious,

that it had been affected by undue political influence,

and that it had been issued by an unauthorized

decisionmaker. First Amended Petition for Review,

4] 76-78. On June 14, 2006, the District Court

pranted “permissive intervention” status to the State

of Connecticut, the Town of Kent, the Kent School

Corporation, and The Connecticut Light and Power

Company.

I. Discovery Proceedings in the District

Court

On June 15, 2006, the Federal Defendants filed the

Administrative Record, containing 6,774 distinet

documents comprising 47,012 pages.

Incident to the Petition for Review, the STN moved

for discovery on “the question of whether improper

political pressure influenced [the] Respondents’ decision

to deny the ‘Tribe's petition for federal acknow!

cedpment.” Petitioner's Motion for Leave to Take

Discovery (Doc. # 58) (Aup. 9, 2006). As Judge Dorsey

noted, review of federal agency decisions is normally

limited to the Administrative Record, unless a htigant

makes a “strong showing,” Citizens to Preserve Over

ton Park, 401 U.S. 402, 420 (1971), in support of a

claim that improper politica) influences had been

exerted on decisionmakers at the Department. Ruling

on Pending Motions, at 7 (Doc. # 93) CONov. 3, 2006).

In this instance, Judge Dorsey found that S'TN’s

evidence of alleged political pressure “doles| raise some

questions,” and that STN’s allegations reparding

sSeeretary Norton and Associate Deputy Secretary

Cason were “sufficient to warrant further discovery

into the question of whether there was bad faith

or improper behavior on their parts.” Jd., at 10-11.

Judge Dorsey initially allowed the STN to depose

Norton and Cason. /d., at 1). Based on information

developed at their depositions, he allowed additional

depositions of Kk. Lee Fleming, David Bernhardt (the

Department’s Director of Congressional and Legisla

tive Affairs, and Counselor to Secretary Norton), and

Loren Monroe (Chief Operating Officer of Barbour,

Gariffith & kKopers, LLC, a lobbying firm). However,

Judve Dorsey denied the STN’s requests to depose

Barbara Coen (author of the Supplemental Transmit-

tal); see Ruling on Petitioner's Motion for Additional

Limited Discovery and on Petitioner's Motion for

Leave to Amend Complaint, at 15-16 (Doc. # 119)

(March 19, 2007); and Aurene Martin (who issued

the FD). See Kuling on Petitioner's Motion to ‘Take

Deposition and for Discovery of Speafied Records of

the White House and the Department of the Interior,

at 6-9 (Doc. # 156) (July 26, 2007). Judge Dorsey also

denied the Tribe’s request for discovery of certain

White House records. /d., at 4-9

J. The Summary Judgment Motions and

the District Court’s Ruling

Judge Dorsey directed the parties to file cross-

motions for summary judgment. /d. at 9. He denied

the Tribe’s request for oral argument. On August 22,

2008, he issued a ruling denying the Tribe’s Motion

for Summary Judgment, and pranting the Cross

Motions for Summary Judgment filed by the Federal

Defendants’ and the Intervenors-Respondents. See

Appendix 1a-59a.

K. ‘The Appeal to the Second Circuit

The ‘Tribe appealed to the United States Court of

Appeals for the Second Circuit, raising two issues:

whether the Tribe’s due process mpht to a fair hearing

was violated by undue political influence, and whether

the RED was issued by an unauthorized official. The

Court of Appeals rejected both claims in a per curiam

opinion issued on October 19, 2009 (amended Novem-

ber 4, 2009), and declined to address the “appearance

of bias” claim

IL. The Petition for Panel Rehearing and

for Rehearing En Banc

The following sentence appears in the panel's deci-

sion: “Any political pressure, moreover, was exerted

upon sentor Intenor Department officiais; there 1s no

evidence that any of the pressure was exerted upon

[James I.j] Cason, who was the official ultimately

responsible for issuing the Keconsidered Final Deter

mination.” (emphasis added.) See Appendix 73a. In

its petition for panel rehearing, the Tribe pointed

| Re:

out that the imphcation that Cason was not a “senior”

official, was refuted by the record. The Department’s

own lawyers described Cason’s position of Associate

Deputy Secretary as “|t]he most senior staff position”

in the Department. (i&mphasis added.) Brief for

hespondents-Appellees, at 71. And Secretary Norton,

who appointed Cason to the Associate Deputy Secre-

tary position, described him as being part of her top

“leadership” group. Norton Dep., 172:9-19, 174:15-19,

2828-11. Nevertheless, the Court of Appeals denied

the petition for panel rehearing, and denied the

Tribe's request to amend the amended opinion to

accurately reflect the fact that Cason was a political

appointee of Norton’s

In a petition for rehearing en banc, the S'TN asked

the Court of Appeals to modify or overrule the

“political influence” standard adopted in Vown of

Orangetown v. Ruckelshaus, 740 F.2d 185, 188 (2nd

Cir. 19%4). The en bane petition was denied. See

Appendix 11lla-112a

MN. THE “POLITICAL INFLUENCE” CLAIM:

AN OVERVIEW

Within hours of issuance of the Final Determina-

tion on January 29, 2004, Connecticut politicians

launched a public and private campaign to overturn

the decision:

Item 1. Secretary Norton did not recall meeting

with members of the Connecticut Congressional dele

gation (the delegation) at any time prior to issuance

of the FD on January 29, 2004. Norton Dep., 280:16-22.

Sut shortly after, and within the space of thirty days,

she was subjected to three meetings with members of

the delepation.* At those meetings, the politicians

expressed their opposition to further casino develop

ment in Connecticut, and urged her to reverse the

Mld)—a decision in which she had participated, and

which she believed was correct on its merits.

Item 2. In 2004 and 2005—~-after the issuance of the

FI) (Jan. 29, 2004), but prior to issuance of the IBIA’s

ruling vacating the FD (May 12, 2005)—the STN FD

was sharply cniticized at three Congressional hearing:

(on March 31, 2004,° May 5, 2004,” and May 11,

2005‘). At those hearings, Connecticut politicians

called on Congress to invalidate the STN FD

*“On March 4, Kepresentative Christopher Shays met with

Norton at Norton’s office. On March 30, 2004, Norton met with

Representatives Shays, Nancy Johnson (whose district included

the Town of Kent), Rob Simmons (whose district included Con

necticut’s two existing casinos), and Frank KR. Wolf of Virginia

at the latter’s office. On April 1, 2004, Norton went to Capitol

Hill and met with Senators Christopher Dodd and Joseph

Jueberman, and Kepresentatives Johnson, Shays, and Kosa

DeLauro

uw ¢€

see Oversight Hearing before the House Committee on

Kesources, Federal Recopnition and Acknowledpment Process by

the Burvau of Indian Affairs, 108th Cong., 2d Sess. (2004)

fh «

See Hearing before the House Committee on Government

Keform, Betting on Transparency: Toward Fairness and Integr

ity in the Interior Department's Tribal Recognition Process

108th Cong., 2d Sess. (2004). At the hearing, Kepresentative

Prank Wolf of Virginia observed that if poner Secretaries could

see what was happening, the Department “would be held in di:

prace.” [d., 55. We added that the Department had made a ma:

take, and that, if not fixed, “the fault will lie at the steps of

Secretary Gate Norton and this administration.” (femphasi:

added ) ld

4¢

See Oversipht Hearing before the Senate Committee on

Indian Affairs, Federal Recopnition, VO9th Cong., Ist Ses:

(2005) Testifying at the hearing were Senators Dodd and

Item 38. Between March and May of 2004, every

member of the Connecticut delegation, as well as

Connecticut Attorney General Kichard Blumenthal

and several dozen Connecticut state legislators, de-

manded one or more “investigations” into what they

claimed was an “unlawful” or “illegal” decision.

Item 4. While the requests for reconsideration of

the FD were under review by the IBIA, three members

of the delegation wrote to the Chief Administrative

Judge, expressing their views on the merits of

reconsideration. Their letter prompted a response

from the Judge, reminding the Representatives that

the IBIJA proceeding was a “formal administrative

proceeding, governed by regulations that prohibit ex

parte Communications.”

Item 5. In July 2004, Representative Johnson

requested a meeting with the BIA so that she could

deliver 8,000 survey posteards from her constituents,

indicating their position in favor of, or opposition to,

construction of a casino in western Connecticut. In an

email, a BIA staff member described Johnson’s effort

as “a PR ploy connected to her opposition to recog-

nizing new tribes in her State.” In a responsive email,

OFA Director Fleming concurred with that assess-

ment, and added: “|ljastly, / view this as pressure

from an elected official.” (Emphasis added. )

Item 6. Much of the political opposition to the FD

was coordinated by a prominent Washington lobbying

firm, Barbour, Griffith & Rogers (“BGR”), that had

been hired by a citizens’ group (Town Action to Save

Kent, or TASK) for the purpose of opposing the

Lieberman, Representatives Johnson, Shays and Simmons, and

Connecticut Governor M. Jodi Kell, who urged the committee to

“invalidate the Schaghtucoke decision.” Id., 15

Sschaghticoke petition. Monroe Dep., 356:10-17.

BGR’s Chief Operating Officer, Loren Monroe, admit-

ted that BGR’s “representation lof TASK] was broad

and focused on Conpress, [the] executive branch,

working with the yovernor, the AG, the press.”

Monroe Dep., 145:7-15. BGR was in contact with “yust

about every [Connecticut] congressional office.” Jd.,

193:11-138. On at least one occusion, Monroe and a

BGR associate, and representatives from TASK, met

with Ruben Barrales, the Deputy Assistant to the

President and Director of Intergovernmental Affairs,

and his staff at the White House." Monroe Dep.,

285:-15-287:11- 288-6-22: 313:3-5.

In his Ruling on Cross-Motions for Summary Judg-

ment, Judge Dorsey provided a useful summary of

the political pressure that was applied in this case:

There is no dispute that the majority of Con-

necticut’s Congressional delegation, the Governor,

the Attorney General, and other anti-gaming

advocates in Washington fiercely opposed the

MD's acknowledgment of STN.

x *K 4

There is no question that throughout 2004 and

2005 the Connecticut Congressional delegation,

“In the spring of 2004, Aurene Martin accompanied David

sjernhardt (the Department’s Director of Congressional and

Lepislative Affairs) to the White House

White House personnel, including Margaret Spellings, the

Director of Domestic Pohey. Decl. of Judith A. Shapiro, 4] 4 (May

1, 2007). The purpose of the meeting was to bricf White House

where they met with

officials on what had occurred with respect to STN’s petition. /d

Martin beheved there were one or two subsequent meetings at

the White House, attended by Bernhardt and senior Depart-

ment officials to discuss the STN petition, but Martin was not

invited to those meetings. /d., 4 5

AP o

Aw het

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 Bar

bour Griffith & Rogers (BGR) to advocate on its

behalf, lobbied the Secretary of the Interior, the

BIA, the IBIA, the White House, and even this

Court about reversing the acknowledgment deci

SLO

STN’s FD became the focus of House and

Senate subcommittee hearings attended by DOI]

staff, members of Conpress, AG Blumenthal, and

other:

There is no question that political actors exerted

pressure on the Department over the course of

2004, and 2005 in opposition to the ID's

acknowledgment of STN, both publicly through

(Congressional hearings and media publicity and

privately through meetings and correspondence

with the Secretary and other agency officials.

There is mo question that, as discussed above,

various members of Congress as well as the Con-

necticut Governor and AG expressed their disap-

proval with the STN acknowledgment at the

Congressional hearings on the subject, and the

hearings became heated on at least one occasion.

(emphases added.) See Appendix 18a-Z20a, 25a, 34a,

36a

£403

Judge Dorsey’s summary of political activities would

be incomplete without highlighting a few additional

events

A. The Inspector General’s Investigation:

the Tribe Played by the Rules

In response to a March 12, 2004 request from

Senator Dodd, Karl FE. Devaney, the Inspector General

of the Department of the Interior, conducted a

comprehensive six-month investigation. Devaney

concluded that neither the BIA nor the ‘Tribe or its

representatives had acted improperly in the process

leading up to the positive FD. Letter from Earl E.

Devaney to Senator Dodd (Aup. 27, 2004). See

Appendix 23a, n.7

Bb. The Attorney General Violates an Es

Parte Prohibition

“On March 17, 2004, Connecticut Attorney General

Klumenthal and representatives from other states

attended a meeting with Secretary of the Interior

Gale Norton and members of her staff.” Ruling on

Motion to Amend Scheduling Order, at 1-2 (Doc. # 75)

(June 14, 2004). One of the topics at the meeting was

the “possible reform of the tribal recognition process.”

Id., at 2. After the meeting, Blumenthal had a private

discussion with Secretary Norton, during which he

expressed his disagreement with the STN FD, and

presented her with a letter critical of that decision.

As Judge Dorsey noted, the letter “detailled] various

concerns about the recognition process as it pertained

specifically to the Schaghticoke matter, including

issues related to the administrative appeal.” /d., at 2;

The Tribe and other parties subsequently received

“2

copies Of Blumenthal’s letter by mail or facsimile.

Judge Dorsey found that the Attorney General’s ea

parte “presentation” to Norton was “not in compliance

with the notice requirement” in the Scheduling

Order. /d., at 3. He also stated:

second, the wappropriate nature of the specific

circumstances here at issue demonstrate|s] the

necessity of prior notification. Without any party

to this matter being present, Blumenthal affirma

tively contacted and met with Secretary Norton,

the head of the agency currently hearing: an

appeal in which Blumenthal has an_ interest,

about the very subject matter of that appeal. Such

conduct, at the very least, appears tmproper and

thus threatens to subvert the integrity of the

appeal process ttself.

(emphasis added.) /d. In a subsequent Order, Judge

Dorsey reiterated that Blumenthal’s private commu

nication with Norton had been “improper.” Order Re:

Pending Motions, at 2 (Doc. # 118 in 38:00-ev-00820

(PCD) (Sept. 30, 2005).

C. A Conpressman Threatens the Secre-

tary of the Interior

On March 30, 2004, Secretary Norton was sum

moned to Capitol Hill to meet with Connecticut

Representatives Shays, Johnson, and Simmons. The

meeting was held in the office of Representative

Krank Wolf of Virginia, a member of the House

Appropriations Committee that has fiscal authority

over the Department of the Interior. As Norton stated

at her deposition, Representative Wolf is “very opposed

to gaming.” Norton Dep., 163:17-18. The meeting in

his office was “fairly emotional,” and the Representa-

tives expressed “very strong feelings” and pressed her

to overturn the STN FD. Norton Dep., 167:19-22;

168:8-11;) 181:7-11. They complained about “the

proliferation of casinos in Connecticut,” and wanted a

moratorium “on tribal recognition” and “paminy

approvals.” d., 164:1-15

Norton testified that during the meeting, Repre

sentative Wolf, who was angry, actually threatened

her: “Congressman Wolf said he would tell the

President he thought I ought to be fired.”” (8mphasis

added.) Norton Dep., 168:12-17; 171:22-178:2; 180:21

11:3; 263:15-264:2.

Norton claimed that she did not take the threat

seriously. Norton Dep., 168:20-169:1, 264:10-22,

275:15-276:2. She also testified, however, that David

sernhardt (her Director of Congressional and Legis

lative Affairs), attended the meeting and heard Wolf's

threat; see id., 172:18-15; although, at his own depo

sition, Bernhardt denied hearing it. Bernhardt Dep.,

69:20-70:2-17. Others in the Department certainly

learned of the threat, because Norton told her “lea

dership team” (which included Chief of Staff Brian

Waidmann, Aurene Martin, and Deputy Secretary

Steven Gmriles) about it. Norton Dep., 171:22-172:19.

Norton did not know if any of those individuals told

others, but she never instructed them not to discuss

It. Id., 171:22-173:5, 275:9-2 Norton considered

James Cason to be part of the “leadership group in

“ “A Member [of Congress} should not directly or indirectly

threaten reprisal or promise favoritism or benefit to any

administrative official.” (Bold in original.) Hlouse Hthics Manual,

Committee on Standards of OMicial Conduct, U.S. House of

Kep., 110th Cong. 2d Session (2008), at 306. “Direct or implied

suppestion of either favoritism or reprisal in advance of, or sub

sequent to, action taken by the agency contacted is unwarranted

abuse of the representative role.” /d., 307. The latter sentence

was adopted in 1970. Id., 356-57 (Advisory Opinion No. 1)

260

the Department that would have heard |about it.”

(emphasis added.) /d., 174:15-22, 276:3-9, 282:8-11.

Representative Wolf's threat represents a textbook

example of how to “do” political influence. For at the

May 5, 2004, hearing of the House Committee on

Government Reform, Chairman Tom Davis of Vir

pinia explained: “a lot of times, when you are doiny

political influence, it usually doesn’t go to the Deputy

secretary level or sometimes even to the decision

maker. [t goes above them, and the pressure comes

down.” (Emphasis added.) Hearing before the louse

Committee on Government Reform, Bello on Trans

parency: Toward Fairness and Integrity in the In

terior Department's Tribal Recognition Process, LO8th

Cong., 2d Sess. (2004), at 51.

D. The Schaphticoke Acknowledpyment

Repeal Bill

On March 3, 2005, Kepresentative Johnson intro

duced IL.R. 1104, the “Schaghticoke Acknowledgment

Repeal Act of 2005” (109th Cong., Ist Sess.), for the

express purpose of overturning the STN FD. See

Appendix 157a-1l71la. The proposed bill stated that

the STN FD was the result, inter alta, of the “explicit,

premeditated manipulation of both the evidence and

established acknowledgment standards,” and it chas

tised the OFA and the Principal Deputy AS-IA who

issued the FD, of participating in an “erroneous” and

“unlawful” decision. I[d., at Appendix 159a, 168a

169a. In two places, the bill cites the full name of

Aurene Martin, the Principal Deputy AS-IA who

issued the FD. J/d., 160a, 170a.

OFA Director Fleming was provided with a copy of

the bill. Fleming Dep., 124:18-125:22. He bad not

seen a “termination” bill during his career at OFA

Id., 127:1-14. Although Representative Johnson's bill

did not become law, it may have been viewed by OFA

(and staff) as a direct threat to OF A’s authority.

IK. Judge Dorsey’s Ex Parte Communi-

cation with Governor Rell

On July 11, 2005, while the Tribe’s petition was

under reconsideration by the BIA, Governor Kell

wrote to Judge Dorsey, urging him not to allow the

Tribe any further extension of time, or any opportu

nity to submit additional evidence. See Appendix

115a-117a. That letter was made part of the record in

the consolidated cases

On August 19, 2005, Judge Dorsey responded in a

private letter to the Governor:

Dear Governor Rell:

Thank you for your letter of July 11, 2005. Your

frustration and impatience ts fully warranted. A

court-ordered deadline for concluding the admin

istrative proceeding was intended to accommo-

date three considerations: |. the tribe’s right to

due process; 2. the BIA’s caseload; and 34. the

lawsuit’s parties right to a reasonably prompt

resolution of the dispute Gnecluding the State’s

interest). The prolonged protraction of this matter,

to resolve the question of tribal recognition, no. /

has stretched, no. 2 has given the BIA more time

than it deserves, and no. 3% has deprived the

parties of a reasonably prompt resolution

I have, in accordance with the view of the U.S

Attorney’s Office, allowed a slight extension for a

request for technical assistance and information.

This was to avoid any claim of infringement of

the Tribe’s due process. | 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 arpument

(emphasis added.) See Appendix 118a-119a

Judge Dorsey's letter to the Governor was discov

ered by the Tribe approximately one year later, while

reviewing documents received from the Governor's

office pursuant to the Tribe’s request under the Free

dom of Information Act. ‘The Tribe sought “clarifica

tion” from Judge Dorsey about his letter, as well

as supplemental discovery. Petitioner's Motion for

Clarification of the Record and Motion for Supple

mental Discovery (Doc. # 87) (Oct. 9, 2006). Judge

Dorsey maintained that his letter had “no substan

tive significance” and did not reflect his views on the

merits of STN’s claims. Ruling on Pending Motions,

at 13-14 (Doc. # 93) (Nov. 3, 2006). At ST'N’s request,

the letter was made part of the record, but Judge

Dorsey denied supplemental discovery about the

letter. Jd.

In the Court of Appeals, the Tribe contended that

the letter was an improper ex parte communication

with the Governor, an “interested party” under the

regulations. See 25 C.FLR. § 83.1. At oral argument,

counsel for the Tribe acknowledged that the letter did

not furnish independent grounds for relief on appeal

However, the Tribe argued that the letter was emble

matic of the political pressures and entanglements

that have permeated this case. To repeat what the

Tribe said in its Petition for Rehearing Hn Bane

OC)

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 a reversal” in this

Court lof Appeals]. Logically, such calculation

presupposes the Tribe would be unsuccessful in

the BIA, and in the District Court, and therefore

would need to appeal. [tis not difficult to see why

any litigant in a politically charged case, might

feel that such a letter contributes to the appear

ance that the “fix was in.”

(iMmphases in original.) Appendix, at 93a

Wt. HOW THE POLITICAL INFLUENCE

CLAIM WAS DECIDED

A. In the District Court

In support of its Petition for Review, the STN

claimed that the RFD was the impermissible product

of political influence, and also claimed that the

“appearance of bias” (arising from political influence)

constituted grounds for rehet. {In opposing memo

randa, the Federal Defendants and Intervenor:

Respondents argued, inter alta, that an “appearance

of bias” standard was not appropriate for assessing a

political influence claim, or was not applicable to an

“informal” “regulatory decision making process.”

In its Ruling on Cross-Motions for Summary Judy

ment, the District Court defined the critical question

as “whether the evidence presented shows that the

[political] pressure exerted can be deemed to have

actually influenced the deciston maker who tssued the

RFD.” (Emphasis added.) See Appendix 44a. Citing

eases from other Circuits, Judge Dorsey stated he

was nol “persuadeld]” or “convinceld]” that political

activities “actually influenced” or “ultimately affected”

the decision not to acknowledge the Tribe. Id... 34a

39a. He observed that he had to “accept the evidence

as presented at face value, in particular the testi

mony by the apency decistoomakers that they were

not unduly pressured by partacular politicians or the

political climate at large.” /d., 48a. Cf. Latecoere

International, Ine. v. United States Department of the

Navy, 19 F.8d 1842, 1365 (1th Cir, 1994 (rejecting

proposition that “by the simple expedient of denying

bias, a povernment official can wipe away all evidence

of 3t"); Sokaopon Chippewa Community (Mole Lake

Band of Lake Supertor Chippewa) et al. v. Babbitt,

961 bk. Supp. 1276, 1281 (W.D Wis. 1997) “Agency

Officials should not be able to overcome a_ party's

showing of political impropriety by simply denyiny all

” 10)

allepations of wronpdoing.”)

Although Judge Dorsey made brief references to an

“appearance” standard; sce Appendix Séa; he never

analyzed the facts under such a standard.

Kk. In the Court of Appeals

On appeal, the STN claimed that the ‘Tribe’s right

to due process of law had been violated by undue

political influence which, in the Tribe’s view, not only

“actually influenced” the ultimate result (the RID),

but also created the “appearance of bias” or impro-

" “VWias as always difficult, and indeed often impossible, to

‘prove.” Morelite Construction Corporation v. New York City

District Council Carpenters Benefit Funds, 74% F.2d 79, &4 (2nd

Cur, 194). ‘That, perhaps, is why “lyjssues of motive and intent

are usually inappropriate for disposition on summary judgment

Wechsler vo Steinberp , ‘133 2d 1054, 105% (2nd Cir. 1984)

prety. The Federal Defendants, and the Intervenors-

Kkespondents, argued in response that the panel could

not and should not adopt an “appearance of bias”

standard, in light of the poverning standard adopted

by a panel of the Second Circuit in Town of Orange

town vo. Ruckelshaus, 740 F.2d 185, 188 (2nd Cir.

1984). In Orangetown, the court stated: “To support a

Claim of improper political influence on a federal

admuinistrative agency, there must be some showing

that the political pressure was intended to and did

cause the apency’s action to be influenced by factors

not relevant under the controlling statute.” Jd., 186.

see Chemunp County v. Dole, 804 V°.2d 216, 222 (2nd

Cir, 1986) (quoting same).

The panel found that although Connecticut political

figures had shown “keen interest” in and “express|[ed]

an adamant opposition to” the STN acknowledgment,

and that members of Congress had “stronply criti

cized” the STN FD, “the evidence submitted by the

Schaghticoke cannot support a claim of imprope:

political influence.” Appendix 72a. That conclusion

was based principally on the fact that “Interior

Department officials uniformly testified in deposi-

tions that they were not influenced by the political

clamor surrounding the Schaphticoke.” /d., at 73a.

With respect to the political influence standard, the

panel stated, in a footnote: “Our standard for a claim

of ‘improper political influence’ is clear, see Orange

town, 740 F.2d at 188; Chemung County, 804 F.2d at

222, and we reject the Schaphticoke’s argument that

we should apply a broader ‘appearance of bias’ stan-

dard in this action.” Appendix 73a, n.1.

As noted earher, the Court of Appeals denied the

STN’s petition for en banc rehearing. See Appendix

llla-J12a.

REASONS FOR GRANTING THE WRIT

“ft as axiomatic that ‘la] fair trial in a fair tribunal!

is a basic requirement of due process’’; Caperton v

A.7.. Massey Coal Co., Ine., U.S. , 329 5.04. 2252.

2259 (2009) (quoting In re Murchison, 349 U.S. 133,

136 (1955)). “This applies to administrative agencies

which adjudicate us well as to courts.” (emphasis

added.) Withrow vo. Larkin, 421 US. 35, 46-47 (1975)

These two sentences frame the central core of the

question presented, and form a bulwark against the

political vortex that commandeered this case.

lt is true, as Judge Dorsey noted in the opening

line of his summary judpyment ruling, that the question

of whether the Schaghticoke Tribal Nation constitutes

an Indian tribe under federal law is a “politically

loaded question.” See Appendix la. But even polit

ically loaded questions are not immune from the

protections of the Due Process Clause.

A. The Acknowledgment Process is Adju-

dicative

With respect to administrative action, the Court

has noted the “preat range of its variety.” United

States v. Mead Corporation, 5338 U.S. 218, 236 (2001)

In the Distmet Court, Judge Dorsey correctly noted

that “[t}he BIA’s federal acknowledgment process

is an adjudicative process.” (iamphasis added.) See

Appendix 32a. On appeal, the Federal Defendants

argued that the acknowledgment process is merely

an “informal adjudicative process” or “informal deci-

sionmaking process,” and not suitable for application

of a heightened “appearance of bias” standard. Brief

of Defendants-Appellees, at 41, 59-62.

)

The STN argued that even though the tribal

acknowledgment process may not constitute a “formal

dad

adjudication” under the APA definition, see 5 U.Sb.C

& 551 (7), it was sufficiently formal (quasi-judicial) in

nature to require adoption of an appearance of bias

standard. In support of that proposition, the Tribe

argued, for example, that (1) the tribal acknowledp-

ment process qualifies us adjudicative under the

“recognized distinction in administrative law between

proceedings for the purpose of promulpating policy

type rules or standards, on the one band, and pro

ceedings designed to adjudicate disputed facts in

particular ‘cases on the other.” United States v.

llorida Kast Coast ity. cae. . 410 U.S 224, 244-45

(1974); (2) the applieability of a due process-based

“appearance Gf bias” standard, designed to promote

core constitutional values, should turn on the nature

or substance of the proceeding in question, not on its

label or classification; and (3) “formal adjudication

is, by contrast to rulemaking, characteristically lony

on facts and short on policy... .” Association of Data

Processing Service Organizations, Inc. vo. Board of

Governors of Irederal Reserve System, 745 ¥.2d 677,

645 n. 6 (D.C.Cir. 1984) (Scalia, J.)

B. The Second Circuit’s Town of Orangetown

tule

As STN argued in the Court of Appeals, the

standard unnounced in Vown of Orangetown — v.

Ruckelshaus, discussed in § JII.B., supra, was designed

and configured for political influence claims arising

from non-adjudicative federal agency decisions. The

apency involved in Oranpetotwwon “was not performing

an adjudicatory function,” but only “an administra-

tive one dealing with the disbursement of prant

funds.” Town of Orangetown, supra, 740 F.2d at 18%

Moreover, “Oranyvetown did not have the status of a

party and was not entitled to notice and an opportu

‘

«a4

nity to be heard.” Id., 8&9. And in Chemung County v.

Dole, supra—the only other Second Circuit decision

(prior to this case) applying Orangetown the agency

action under review was not adjudicative, as it involved

the administrative acts of re-calculating competing

bids to insure that a government contract was awarded

to the lowest bidder. Chemung County, supra, 804

i 2d at 216-22. Furthermore, neither of the two cases

qited in Orangetown, at 18%, as authority for the

rule announced therein, involved adjudicative-type

; 11

decisions.

In short, Oranpvetown represents a “one size fits

all’ standard that fails to take into consideration

the inherent qualitative differences between quasi-

judicial Cadjudicative) proceedings and quasi-lepisla

live (rulemaking) proceedings. Such a_ distinction

has been either expressly or implicitly recognized

by every other Circuit that has considered a politi

cal influence claim, including the First Circuit,’* the

Third Cireuit,’’ the kifth Cireuit,’* the Seventh

'Sterra Club vo. Costle, 657 F.2d 298 (D.C. Cir. 1981) in

volved informal rulemaking for emissions standards. Natural

Resources Defense Council v. City of New York, 534 FF. Supp. 279

(S.D.NLY.), aff'd, 672 F.2d 292 (2nd Cir.), cert. dismissed, 456

US. 920 (19%2) involved review of an enforcement action con

cerning demolition of a theater

“sso Standard Oul Co. (Puerto Rico) v Lopez-Freytes, 522

Rasgd 146, 145 148% (ist Cir. 2008) Gaddressing claims of appeai

ance of bias and actual bias)

Gulf Ou Corporation v. kederal Power Commission, 563

Mo2d 588, 610-12 Cord Cir. 1977) Cadininistrative agencies must

be allowed to exercise their adjudicative functions free of Con

yressional pressure”), cert. denied, 434 U.S. 1062 (1978)

“Pillsbury Co. vo. Federal Trade Commusston, 354 F.2d 95zZ,

964 (Sth Cir. 1966) (when Congress intervenes in an apency’

judicial function, courts become concerned not only with Jiti

mit

Cireuit,’’ the Ninth Cireuit,’® the Eleventh Circuit,”

and the District of Columbia Circuit.’” It appears

pants right to a fair trial, but “equally important, with their

right to the appearance of impartiality, which cannot be main

tained unless those who exercise the judicial function are free

from powerful external influences’); DCP Farms, et al v

Yeutter, 957 F.2d 1183, 1187-88 (5th Cir.) CPillsbury holds that

the appearance of bias caused by congressional imterference

violates the due process rights of parties involved in judicial or

quast-yudictal apyency proceedings.”) Gemphasis in original.),

cert. denied, 506 U.S. 953 (1992)

Monieson v. Commodity Futures Trading Commission, 996

2d &52, 865 (7th Cir, 1993) (noting distinction between con

pressional intervention in lepislative or yudicial functions)

' State of California ex rel. State Water Resources Control

foard vu. Kederal Knerpy hepulatory Commission, 966 F.2d 154],

551-52 (9th Cir. 1992) (Conpressman’s letters to FERC “do not

rise to the level of undue conyressional mfluence deseribed in

Pillsbury, nor do they adversely affect the appearance of tmpar

fiality in this case”) (Kmphasis added.); Portland Audubon

Society vo. The kndangered Species Committee, 984 F.2d 1584,

1539-47 (9th Cir. 1993) Camended opinion) (even “the President

may not interfere with quasi-adjudicatory agency actions”)

“fund for Animals, Inc. v. fttee, 65 F.8d 535, 548% (11th

Cir.1996) C“conpressional input neither created an appearance

of tmpropriety nor actually affected the outcome”) (emphasis

added) (quoting ATX, Ine. v. United States Department of Trans

portation, 41 F.3d W522, 1527 (DC. Cir. 1994))

"DC. KFederation of Civic Associations et al. v. Volpe, 459

Ri2d 1231, 1246-47 (DC Cir. 1971) Gf Secretary of Vransporta

tion had been acting in judicial or quasi-judicial capacity, “plain

tiffs mipht have prevailed even without showing that the pres

sure had actually influenced the Secretary's decision. With

repvard to judicial decision making, whether by court or agency,

the appearance of bias or pressure may be no less objectionable

than the reality.”) (Mmphasis added.), cert. demied, 405 US

1030 (1972); Peter Kiewit Sons’ Co. v. United States Army Corps

et al., 714 F.2d 168, 169 (D.C.Cir. 1983) (“The

[Volpe] court indicated that if the decision had been judicial o1

o Len FUNC TS

that no other Circuit apphes an Orangetoiwn-type

rule “across the board.” And prior to the Second

Circuits decision in this case, the Orangetown

standard (or its equivalent) had never been applied

by the Second Circuit, or any other Circuit, to a

political influence claim arising from a_ federal

adjudicative proceeding.” Ao prant of certiorari is

therefore warranted to resolve the conflict between

the Circuits. See Rule 10(a), Rules of the Supreme

Court.

There is nothing novel or unusual about an

“appearance of bias” or “appearance of impropriety”

standard. Indeed, a cardinal principle of American

jurisprudence as that “justice must satisfy the

appearance of justice.” Offutt v. United States, 348

U.S. 11, 14 (1954); Aetna Life Insurance Co. v. Lavoie,

475 U.S. &13, 825 (1986). See Joint Anti-Fascist

quasi-judicial, it could be invalidated by ‘the appearance of bias

or pressure.” Under this standard, pressure on the decision

maker alone, without proof of effect on the outcome, is sufficient

lo vacate a decision.”), ATX, Inc. v. United States Department of

Transportation, 41) F.3d 1522, 1527-29 (DC. Cir. 1994) (where a

proceeding is quasi-judicial, “we must determine whether con

pressional interference occurred, or appeared to, to such an

extent as to compromise the administrative process”) (emphasis

added.); Kontag, Inc., The Village of Uyak v. Andrus, 580 F.2d

601, 610 (DC. Cir.) (Congressional Jetter to Interior Secretary

“compromised the appearance of the Secretary’s tmpartiality”)

(mphasis added.), cert. denied, 439 U.S. 1052 (197%). See also

Professional Aur Traffte Controllers Organization vo kederal

Labor Relations Authority, 672 2d 109, 11% (1). Cir, 1982) (ex

parte contacts)

™“ Oranpelown was cited by the Sixth Circuit in an adiiin

istrative rulemaking (non-adjudicative) case. See Iadio Associa

tion on Defending Airwave lights, Ince. v. United States Depart-

ment of Transportation, 47 3d 794, 807 (6th Cir), cert. denied,

516 U.S. 811 (3995).

Refugee Coniunittee vu. McGrath, 341 U.S. 123, 172 n.

19 (1951) (*rankfurter, J., concurring) (justice must

not only be done but manifestly be seen to be done”).

With respect to judicial officers, the Court’s recent

Caperton decision noted that state and federal juris-

dictions have adopted measures designed “to eliminate

even the appearance of partiality.” 129 S.Ct. at 2266

(Mmphasis added.) (citing the ABA Annotated Model

Code of Judicial Conduct, Canon Z (“A judge shall

avoid impropriety and the appearance of impro

priety.”). Under state and federal codes, judges are

required to disqualify themselves where the judye’s

“impartiality might reasonably be questioned.” See

id., Canon 381f(1); 28 U.S.C. § 455(a). Thus, even

absent. proof of actual bias, due process may be

violated when there is a serious or substantial “risk

of actual bias”; Caperton, supra, 2265; or “when the

probability of actual bias on the part of the judge or

decistonmaker is too high to be constitutionally

tolerable.” (emphasis added.) Withrow v. Larkin, 421

U.S. 35, 47 (1975); Caperton, supra, 2257, 2259.

Although this case does not involve the issue of

recusal, it does involve the issue of whether a

“decisionmaker” appeared to be biased or partial as a

result’ of extensive political pressure the kind of

pressure that can lead even a well-intentioned deci

sionmaker “not to hold the balance nice, clear and

true.” Tumey v. Ohio, 273 US. 510, 5382 (19277);

Caperton, supra, 2265 (quoting same). The principles

that animate Caperton are equally applicable to an

administrative adjudicative decisionmaker.

In the universe of reported cases involving claims

of “political influence” on administrative proceedings,

this case is, by any measure, “extreme,” considering

the breadth and intensity of the pressures exerted on

a federal agency. While “extreme cases often test the

bounds of established legal principles,” “it is also true

that extreme cases are more likely to cross constitu

tional limits, requiring the Court’s intervention and

formulation of objective standards.” Caperton, supra,

2265. This case presents an exceptional opportunity

for the Court to consider the important constitutional

question presented

CONCLUSION

for all of the forepoing reasons, a writ of certiorari

should issue to review the judgment and opinion of

the United States Court of Appeals for the Second

Coircult

Kespectftully submitted

RICHARD EMANUEL, ”

601 Plymouth Colony

Brantford, C'T 06405

(203) 484-6201

newtnals@comcast. net

* (Counsel of Kecord Counsel for Petitioner

May 24, 2010

APPENDIX

Lia

APPENDIX A

UNITED STATES DISTRICT COURT FOR THe

DISTRICT OF CONNECTICUT

Clase No. 3:06-cev 00081 (PCD)

SCHAGHTICOKE TRIBAL NATION,

Petitioner,

DIRK KEMPTHORNE, Secretary,

Department of the Interior, et al.,

Respondents

STATE OF CONNECTICUT, KENT SCHOO!

CORPORATION, THis CONNECTICUT LIGHT AND

POWER COMPANY, and ‘TOWN OF KENT,

Intervenors Respondent:

Aupust 22, 200%, Decided

Aupust 26, 2008, Filed

JUDGES: Peter ©. Dorsey, U.S. District Judpe

OPINION BY: Peter CC. Dorsey

OPINION

RULING ON CROSS-MOTIONS

FOR SUMMARY JUDGMENT

This case concerns the politically loaded question of

whether the Schaghticoke ‘Tribal Nation STN” o1

“Petitioner”) constitutes an Indian tribe within the

meaning of federal law as provided in the federal

acknowledgment regulations, 25 C.F.R. Part) &3

(1994). On October 11, 2005, Associate Deputy Pec

“al

retary of the Intemor James kk. Cason issued a

Reconsidered Final Determination (the “RIFD”) con

cluding that the STN did) not meet the federal

acknowledgment requirements. On January 12, 2006,

STN filed a petition for review in this Court claiming

that the Department of the Interiors RIED was

arbitrary and capricious under the Administrative

Procedure Act (APA), the result of improper political

influence in violation of STN’s due process rights, and

the product of an ultra vires decision in violation of

the Appointments Clause of the United States Con

stitution and of the Vacancies Ketform Act. After

conducting extra-record discovery upon permission

from the Court, Petitioner filed a motion for sum

mary judgment. Respondents Dirk Kempthorne,

Secretary of the Interior; James Cason, Associate

Deputy Secretary of the Intenor; the United States

Department of the Interior (the “Department” or

“DOl’);: the Bureau of Indian Affairs (“BIA”): the

Office of Federal Acknowledgment (“OFA”); and the

Interior Board of Indian Appeals (CIBIA”) (collec-

tively, the “Federal Respondents”) filed) a cross

motion for summary judgment. Intervenors the State

of Connecticut, Kent School Corporation, The Con

necticut Light and Power Company, and the Town of

Kent (collectively the “Intervenors” or “Intervenor

Respondents”), who participated as interested parties

in the administrative proceedings before the DOI,

also filed a cross-motion for summary judgment

Kent School Corporation, The Connecticut Light and Power

Company, and the Town of Kent are defendants and the State i:

an amicus in two land claim suits brought by STN under the

Non-Intercourse Act, Schaghticoke Tribal Nation v. Kent Sch

Corp., et al., No. 3:98 ev 01113 (PCD), and Schaghticoke Tribal

Nation ov. Schaphticoke Indian Tribe, et al., No. 3:00-ev-00820

(PCD)). These cases were consolidated with the lead case, l/nited

Because the Court is able to resolve the pending

motions on the papers, Petitioners request for oral

argument is denied. For the reasons stated below,

Petitioner's Motion for Summary Judgment [Doc. No

165) is denied, and Respondents’ Cross-Motion for

Summary Judgment [Doc No 17%) and the

Intervenor-Respondents’ Cross-Motion for Summary

Judpment [Doc. No. 174] are pranted. Respondents’

Motion to Strike (Doc. No. 182] is pranted in part and

denied in part.

lL MOTION TO STRIKE

Before delving into the merits of the case, the

Court must resolve the scope of the record before it

The Respondents and Intervenor-Respondents have

moved pursuant to Rule 56(e) to strike 19 documents

submitted by Petitioner in support of its motion for

summary judgment.’ Rule 56(e) provides that on a

summary judgment motion, “|slupporting and op

posing affidavits shall be made on personal know-

ledge, shall set forth such facts as would be admissi

ble in evidence, and shall show affirmatively that the

affiant is competent to testify to the matters stated

therein.” Fed. R. Civ. P. 56le); see also Local R.

States v. 43.47 Acres Of Land, et al., No. 2:85 ev-01078 (PCD),

filed on December 16, 1985, in which the United States seeks to

condemn certain lands adjacent to the Schaghticoke state res

ervation for the Appalachian ‘Trail. All three land claim suit:

involve the question of whether the STN is an Indian tribe

under federal law.

“ Kespondents also move to strike the two exhibits attached to

Petitioner's memorandum in support of its motion, a time line

and a graphic created by Petitioner to assist the Court in

understanding the facts of the case. The Court will treat the

exhibits as part of Petitioner’s memorandum, an argument to

consider but to accept as undisputable only to the extent it is

supported by evidence in the record

56(aK(3). “The principles governing admiussibility of

evidence do not change on a motion for summary

judgment. . . . Therefore, only admissible evidence

necd be considered by the trial court in ruling on a

motion for Summary judgment.” Merry Charters, LLC

v. Town of Stonington, 3842 F. Supp. 2d 69, 75 (D

Conn. 2004) (quoting ftaskin vo. Wyatt Co., 125 F.3d

55, 66 (2d Cir. 1997)). “A motion to strike is the

correct vehicle to challenge materials submitted in

connection with a summary judgment motion.’

Newport klecs., Ine. v. Newport Corp., 157 ¥. Supp.

2d 202, 208 (1). Conn. 2001). “[A] motion to strike is

appropriate if documents submitted in support of a

motion for summary judgment contain imadmissible

hearsay or conclusory statements, are incomplete, or

have not been properly authenticated.” Spector ov

Expertan Info. Servs. Inc., 321 F. Supp. 2d 348, 352

(1). Conn. 2004) (citations omitted): see also Flollan

der v. Am. Cyanamid Co., 999 F. Supp. 252, 255-56

(Id. Conn. 1998). For the reasons that follow, Respon

dents’ motion to strike is granted in part and denied

in part

The Respondents first move to strike all of the

contested documents on the basis that they are out

side the administrative record. When reviewing an

agency decision pursuant to the Administrative Pro

cedure Act, a court is generally confined to the

administrative record compiled by the agency when it

made its decision. Citizens to Preserve Overton Park

v. Volpe, 401 U.S. 402, 419-20, 91 S. Ct. 814, 28 1

Iced. 2d 186 (1971). However, in some circumstances,

as in this case, parties are permitted to conduct

discovery beyond the administrative record. See

Schaghticoke Tribal) Nation v. Norton, No. 3:06

cv-0081 (PCD), 2007 U.S. Dist. LEXIS 19535, 2007

WL 867987, at *5 (D. Conn. March 19, 2007) (citing

Sokaopou Chippewa Comim’y (Mole Lake Band of

Lake Superior) v. Babbitt, 961 Fo Supp. 1276, 126)

(WD. Wis. 1997)). evidence now presented by Pets

lioner outside the administrative record but pursuant

to this Court’s prior discovery rulings may be con

sidered to the extent it satisfies the evidentiary

admissibility rules, see Sokaopon, 961 Fo Supp. at

1243, especially since Respondents themselves have

rehed on evidence uncovered through discovery and

outside the administrative record, See id. at 1246

Ktespondents’ motion to strike the declarations of

Judith A. Shapiro, Aurene Michelle Martin, William

J. Gullotta, and Steven lL. Austin is demed, Kven if a

declaration would not be admissible at trial, a court

may consider it on a summary judgment motion if it

is based on personal knowledpe and sets forth facts to

Which the declarant could testify at trial and that

would be admissible in evidence. led. It. Civ. 2. 56Ce)

The declarations challenved by Kespondents’ motion

to strike are all based on personal knowledge and are

therefore appropriate for review at this time. Kespon

dents aryvue that Shapiro’s declaration contains in

formation relayed by former Department official

Aurene Martin wihieh constitutes imadimussible

hearsay. “Ilearsay 1s a statement, other than one

made by the declarant while testifying at the trial o1

hearimmy, offered in evidence to prove the truth of the

matter asserted.” ed. RR. Ievid. (401 )(c). However,

under Kule 60)(d)(2)1D) of the Federal Rules of

evidence, an out-of-court statement is not hearsay if

itis “a statement by the party’s ayent or servant

concernipy a matter within the scope of the ayency or

employment, made durnny the existence of the

relationship.” Fed. i. Ievid. #O01(d)(2)0D). The state

ments by Ms. Martin captured in Attorney Shapiro's

declarations were made reyvarding her coployiment as

Principal Deputy Assistant for Indian Affairs repard

my the STN acknowledyment decision, unquestion

ably matters within the scope of her employment at

the Department of the Interior, a party to this case

These statements are therefore admissible as party

admissions, even though Ms. Martin was no longer

employed as the Principal Deputy Assistant in 2007

when she made these statements to Attorney Shapiro

See Limone vo. United States, 497 . Supp. 2d 1438, 163

n. $1 (. Mass. 2007) (Qinding testimony of currently

unavailable I BI agents before House Committee on

Government Reform admissible as partly admissions

over povernment’s hearsay objection, even though at

time of testimony apvents were no longer employed by

government) see also In re Jacoby Atrplane Crash

Litigation, No. 99-6073 GHAA), 2007 US. Dist. LICXIS

69291, 2007 WL 2746833, at 74-5 (D.N.J. Sept. 19,

2007) (collecting: Cases where out-of-court statements

by vovernment employees were admissible apainst

the povernment)

Despite the assertion in their reply to the contrary,

Kespondents merely cite a lst of contested docu

ments im thea motion to strike, failing to specily

What about any of the documents renders them

madmissible. Respondents assert that many of the

comtested documents are inadmissible because they

are unauthenticated documents. However, the new:

and mayazine articles submitted by Petitioner (Pet r's

Iexs. 17, 79) are self-authenticating under Kule 9O2(6)

of the lrederal Kules of Invidence and are therefore

admissible. Petitioner's Exhibit 31, the press release

issued by Kepresentative Christopher Shays on

March 12, 2004, may also be considered’ self

authenticating. Press releases by povernment author

ities may be selfauthenticatiny under Rule GO2(5) a:

official publications issued by a pubhe authority

Although nothing on the pape of the exhibit submit

ted by Petitioner demonstrates that it was an official

document issucd by Representative Shays’ office, see

Sannes v. deff Wyler Chevrolet, Ine., No. C-1-97-930,

1999 U.S. Dist. LEXIS 21748, 1999 WL 33313134, at

S$ n3 (S.D. Ohio March 31, 1999) (holding that

Federal Trade Commission press releases “printed

from the I'PTC’s povernment world wide web pagel]

are selfauthenticating official pubheations under

Ktule 9O2(05)."), STN included the web address for

Representative Shays’ press releases in its Local Kule

56(a)1) statement, thereby allowing the Court to

verify that the press release in the record was a copy

of an official document issued by a public authority.

See 2 MeCormick On Iivid. & 227 (6th ed. 2006)

(noting that information “retrieved from povernment

websites has been treated as self-authenticating,

subject only to proof that the webpaye does exist at

the povernmental web location.” )

Kespondents also move to strike mumerous email:

sent to and from the lobbying firm Barbour Griffith &

Kopvers BGR”) for lack of authentication and a:

inadmissible hearsay. However, these emails have

been properly authenticated to the extent that they

were produced to Petitioner by BGR itself during:

discovery. See John Paul Mitchell Sys. vo. Quality

Kings Distribs., Inc., 106 ¥. Supp. 2d 462, 472

(SDNY. 2000) Cholding that the act of production

itself imipleitly authenticates documents). They also

were identified at) Loren Monroe's deposition. See

Med. Kk. devid. & 9OI10b) (providing that “[tlestimony

that a qmatter is what it claimed to be” is an example

of identification which satishes the authentication

require sie nit ol Jtule 90 1(a))

A more significant problem with the KGR emails is

that they contain hearsay. Petitioner argues that the

BoK emails constitute business records and = are

therefore admissible under the business-records

hearsay exception of Kule 80306). However, “a party

seckinyg lo introduce an email made by an employee

about a business matter under the hearsay exception

under Kule %03(6) must show that the employer

imposed a business duty to make and maintain such

a record.” Canatxx Gas Storage Ltd. v. Silverhawk

Capital Partners, LLC, Civ. No. H-06-1138380, 2008

US. Dist. LEXIS 37803, 2008 WL 1999234, at 712

(S.D. Tex. May &, 200%); see also DirecTV, Inc. v.

Murray, 307 F. Supp. 2d 764, 772-73 CD.S.C. 2004)

(admitting sales records contained in emails under

the business records hearsay exception when the sale

orders were regularly received by email and the

emails were retained as records of each = order).

Beeause Petitioner has submitted absolutely no

information regarding the practice or composition of

the emails at issue, the Court will not deem them

admissible as business records. New York — v.

Microsoft, No. CIV A. 98-1233 (CKK), 2002 U.S. Dist.

LLkXIS 7643, 2002 WL 649951, at 72 (.1)-C. April 12,

2002)

Petitioner also argues that the emails are offered

not to prove the truth of the matters asserted within

them but as circumstantial evidence of Mr. Monroe's

and other writers’ and recipients’ states of mind. See

ed. It. kivid. 40303); United States v. Dupre, 462 3d

131, 337 (2d Cir. 2002). Ilowever, as cited by Peti

tioner in its bmefs, the emails are offered not to

reflech anyone’s state of mind but to prove that

certain meetings and hearings happened and that

certain Jobbying stratepics were employed. ‘To the

extent that these emails constitute a record of corres

pondence between Department officials, Jlepislative

staffers, members of TASK, and employees of BGK

]

about the opposition to STN’s acknowledgment, the

Court recognizes the existence of this paper trail as a

part of the admissible record. The truth of the

content of the emails written by BGR and by Con

pressional aides, however, are inadmissible hearsay

and will therefore not be considered. Because BGK

was hired by a community organization and was not

acting in this instance as an ayent of the state or

federal povernment, Communications from BOGOR can

not be considered party admissions which fall within

a hearsay exception. The Court will also strike emails

written by the co-founders of TASK, which is not a

party to this action and which was not acting as an

agent of the state. Similarly, because no members of

Congress or their aides are parties to this case, the

emails written by Conpressional staffers ure not

party admissions either. emails written from = staff

members of Governor Rells office and by employees

of the Department, however, will be considered

admissions of party-opponents excludable from the

definition of hearsay under tule &801(d)(2)(D) and will

therefore remain in the record

)

pranted in part. exhibits 7, 18%, 24, 28, 36, 39, 40, and

53, and portions of Exhibits 22, 3%, 69, 38 to the

For these reasons, Respondents’ Motion to Strike is

Petitioner's motion for summary judgment will be

stricken from the record.

HW. MOTION FOR SUMMARY JUDGMENT

A. Standard of Keview

Summary judgment is approprnate if there is no

penuine issue as to any material fact and the moving

party is entitled to judgment as a matter of law. ed.

10a

Kk. Civ. Po 56(e). No penuine issue of material faet

exists and summary judgment is therefore appropri-

ate when “the record taken as a whole could not lead

a rational trier of fact to find for the non-moving

party.” Matsushita Klec. Indus. Co. v. Zenith Radto

Corp., 475 U.S. 574, 587, 106 5. Ct. 1348, &9 LL. Ted.

2d 53% (1986). A material fact is one which “might

affect the outcome of the suit under the poverning

law,” and an issue is penuime when “the evidence is

such that a reasonable jury could return a verdict for

the nonmoving party.” Anderson vu. Liberty Lobby,

Inc., 477 U.S. 242, 248, 106 5S. Ct. 2505, 91 L. Ed. 2d

202 (19%6). Importantly, however, “|cjonclusory alle-

pations wil) not suffice to create a penuine issue.”

Delaware & HR. Co. v. Conrail, 902 F.2d 174, 178

(2d Cir. 1990). The moving party bears the burden of

establishing that summary judgment is appropriate.

Anderson, 477 U.S. at 225, 1065. Ct. 2505. “A defen-

dant need not prove a nepative when it moves for

summary judgment on an issue that the plaintiff

must prove at trial. It need only point to an absence

of proof on the plaintiffs part, and, at that point,

plaintiff must ‘designate specific facts showing that

there is a penuine issue for tral.“ Parker vu. Sony

Pictures Entm’t, Inc., 260 8d 100, 111 (2d Cir. 2001)

(quoting Celotex Corp. vo. Catrett, 477 U.S. 317, 324,

106 S. Ct. 254%, 91 L. Ed. 2d 265 (1986)); see also

Gallo v. Prudential Residential Seros. Ltd. P’ship, 22

3d 1219, 1223-24 (2d Cir. 1994) @The moving party

may obtain summary judgment by showing that little

or no evidence may be found in support of the non

moving party’s case.”). The same lepal standards

apply when considering cross-motions for Summary

judpment. A court “must evaluate each party’s mo

tion on its Own merits, taking care in each instance to

draw all reasonable inferences apainst the party

whose motion is under consideration.” Make the Road

by Walking, Inc. v. Turner, 378 F.3d 133, 142 (2d Cir.

2004) (citations omitted); see also Scholastic, Inc. v.

Harris, 259 ¥.3d 73, 8) (2d Cir. 2001). A court must

deny both parties’ motions for summary judpment if

it finds the existence of disputed material facts.

Morales v. Quintel Entm’t, Ine., 249 F.3d 115, 121 (2d

Cir. 2001). Therefore, “each party's motion must be

examined on its own merits, and in each case all

reasonable inferences must be drawn apainst the

party whose motion is under consideration.” /d. at

121.

A challenge to a final agency action such as this

one is brought pursuant to the APA, 5 U.S.C. §§ 701

et seq., under which judicial review is not de novo

review. Kecognizing that administrative agencies are

more knowledgeable than the courts in many specia-

lized areas of fact determinations, the APA requires

courts to exercise considerable deference when re-

viewing agency decisions. Natl Pes. Def. Council v.

SEC, 196 U.S. App. D.C. 124, 606 F.2d 1031, 1048

(D.C. Cir. 1979); State of New York Dep't of Soc.

Serus. v. Shalala, 21 F.3d 485, 492 (2d Cir. 1994)

(standard of review is deferential, presuming validity

of apency actions as long as the decision has a

“rational basis”).

A court may overturn an apency decision only if it

is found to be “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.”

5 U.S.C. § TO6(2) A), Ue). An agency decision is arbi

trary and capricious if “the agency has relied on

factors which Congress has not intended it to con

sider, entirely failed to consider an important aspect

of the problem, offered an explanation for its decision

that runs counter to the evidence before the agency,

l2a

or is so implausible that it could not be ascribed to a

difference in view or the product of apency expertise.’

Vt. Pub. Research Group ovo. US. Fish & Wildlife

Sero., 247 FF. Supp. 2d 495, 505 (Db. Vt. 2002) (quoting

Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto.

Ins. Co., 468 U.S. 29, 43, 103 5S. Ct. 2856, 77 1. Ind. 2d

443 (1983)); see also Waterkeeper Alltance, Ine. v

EPA, 399 F.3d 486, 498% (2d Cir. 2005). The court

looks for consideration of relevant data, a satisfactory

explanation of the decision, and a rational connection

between the facts the agency found and the decision

it made. Miamt Nation of Indians of Indiana v.

Babbitt, 112 . Supp. 2d 742, 751 (ND. Ind. 2000),

aff'd, 255 F.3d 342 (7th Cir. 2001), cert. dented, 534

U.S. 1129, 122 S. Ct. 1067, 151 L. Ed. 2d 970 (2002)

(citing State Farm, 4638 U.S. at 48, 1038 S. Ct. 2856).

“The task of the reviewiny court umder this standard

is to determine whether the apency has considered

the pertinent evidence, examined the relevant fac

tors, and articulated a satisfactory explanation for its

action including whether there is a rational connec

tion between the facts found and the choice made.” Jf

Andrew Lange, Inc. v. FAA, 208 F.3d 3889, 391 (2d

(ur. 2000) Gnternal questions omitted). The objective

of the court’s inquiry is “whether there has been a

clear error of judgment.” Citizens to Preserve Overton

Park, 401 U.S. at 416, 91S. Ct. 814.

B. Background

l. kederal Acknowledpment Repulations

The BIA has established policies and procedures

for acknowledging that certain American Indian

groups exist as tribes. Federal acknowledgment of

tribal existence by the DOT is a prerequisite to the

protection, services, and benefits of the Federal

government available to Indian tribes by virtue of

loa

their status as tribes. 25 C.FLR. § 83.2. Acknowledg-

ment also establishes a government to-povernment

relationship with the United States and entitles a

tribe to the immunities and privileges available to

other federally acknowledged Indian tribes. /d. See

also Cherokee Nation vo. Georgia, 30 U.S. 1, 17, 5 Pet.

i, & L. Ed. 25 (1831). The acknowledpment repgula-

tions apply to “those American Indian groups indt-

genous to the continental United States which are

not currently acknowledged as Indian tribes by the

Department” and are “intended to apply to proups

that can establish a substantially continuous tribal

existence and which have functioned as autonomous

entities throughout history until the present.” Id. §

63.3. Because a tribe is a political, not a racial,

classification, Morton v. Mancart, 417 U.S. 535, 553,

94 5. Ct. 2474, 41 L. td. 2d 290 (1974), the essential

requirement for acknowledgment is) continuity of

tribal existence. 59 Fed. Rep. 9280, 9282 (eb. 25,

1994)

The acknowledpment repulations contain seven

criteria, each of which must be satisfied by the

petitioner: (a) identification as an American Indian

entity on a substantially continuous basis since 1900;

(b) existence as a distinet community from historical

limes to the present; (c) existence of political influ

ence or authority from historical times to the present;

(d) a poverning document including membership

criteria; (©) membership is composed of individuals

who descend from a historical Indian tribe; (1) mem

bership is composed of persons who are not members

of an acknowledged tribe; and (2) the petitioner’s

prior tribal status was not terminated by Congress

25 CAR. & 83.7. A petition must be denied if the

available evidence “demonstrates that it does not

meet one or more of the criteria,” or if there is “in-

14a

sufficient evidence that it meets one or more of the

criteria.” Id. § 83.6(d). Although conclusive proof is

not required, the available evidence must establish “a

reasonable lkelihood of the validity of the facts

relating to that eriterion.” Jd. The burden of proof

rests on the petitioner. /d. § &3.6(e).

At issue in this case are STN’s ability to satisfy the

criteria established by Sections &38.7(b) and (c) of the

acknowledpment regulations, showing that a tribal

group has maintained community and bilateral politi-

cal relations on a substantially continuous basis from

historical times to the present. Section &3.7(b) re-

quires proof that “a predominant portion of the

petitioning group comprises a distinct community

and has existed as a community from historical times

until the present.” 25 C.FLR. § 83.7(b). Community

means “any group of people which can demonstrate

that consistent interactions and. significant social

relationships exist within its membership and that

its members are differentiated from and identified as

distinct from nonmembers. /d. § $3.1. The regulations

provide examples of how a group may demonstrate

community at a particular time through a combina-

tion of “direct” evidence, such as “significant rates of

marriage within the group,” “significant social rela-

tionships connecting individual members,” and “sig-

nificant rates of informal social interaction which

exist broadly amony the members of the group.” Id. §

83. 7(b)1)G)-Ox). Alternatively, a group may demon-

strate community at a particular time if it Can show

that more than 50% of its members reside in a

geopraphical area exclusively or almost exclusively

composed of members of the proup, and the rest of

the group consistently interacts with it, or, if at least

50% of the members speak a distinct language. Com

munity can also be demonstrated for a time period if

bia

at least 50% of the marriages in the proup are

between members. /d. § 83.7(b)(2)0)-(v)

pection 83.7(c) requires proof that the pctitioner

has “maintained political influence or authority over

its members as an autonomous entity from historical

times until the present.” 25 C.FLR. § 83.7(c). “Political

influence or authority” is defined as

a tmbal council, leadership, internal process or

some other mechanism which the group has used

as a means of influencing or controlling the

behavior of its members in significant respects,

and/or making decisions for the group which

substantially affect its members, and/or repre

senting the pvroup in dealing with outsiders in

matters of Consequence

Id. §& 83.1. Political influence or authority is a bila

teral relationship between the members and their

leaders. Miami Nation of Indians, 112 F. Supp. 2d at

756. A group may demonstrate political influence or

authority over its members at a particular time by

providing a combination of evidence, for example,

that it could mobilize significant numbers of mem

bers and resources from its members for group put

poses, that members consider actions taken by

leaders to be important, or that there is widespread

knowledge and involvement in political processes by

most of the members. 25 C.FLR. §& 838.7(e)(1)G) Git)

Sufficient evidence for political authority at a par

ticular time would be if the group allocates proup

resources, such as land, on a consistent basis, o1

settles disputes among members on a regular basi:

Id. §& &8.7(e)(2)0)-Gi). Petitioner must demonstrate

both community and political authority on a “sub

stantially continuous basis.” Jd. § $3.6(e)

16a

2. The Proposed Finding and Final Determina

tion of ST'N’s Petition

The Reconsidered Final Determination issued in

October 2005 that the STN was not an Indian tribe

within the meaning of federal law as provided by the

federal acknowledgment repulations was the culmi

nation of an extensive administrative process that

included a Proposed Finding (PI’), a petitioner and

pubhe comment period on the PIF, a petitioner's

response to the comments, and a Final Determina

tion (“ED”) In response to requests for reconsidera

tion filed by various interested parties, the Interior

Board of Indian Appeals (IBIA”) reviewed the FD.

Following the review of response briefs by STN, the

IBIA vacated and remanded the FD to the Depart

ment of the Interior. STN and other interested

parties provided further comments to the agency

after the remand, and in October 2005 the Depart

ment issued its final and effective agency decision,

the RED.”

The Proposed Finding (“PE”), or preliminary ac

knowledgment decision, on the S'TN, issued pursuant

to 25 CLFLR. § 83.100h), analyzed and evaluated all of

the evidence then in the record in the context of the

acknowledpyment repulations. Notice of the PF, which

was issued on December 5, 2002, was published in

the Federal Register, 67 Fed. Reg. 76184 (Dec. 11,

2004). (Resp’ts’ Ix. ©.) The PF concluded that S'T'N

STN submitted the RED as Exhibit 1 to its motion for

summary judpment, the FD as Exhibit 4, and the IBILA’s de

cision la re Federal Acknowledgement of the Schaphticoke Tribal

Nation, 41 IBIA 30 (May 12, 2005), as Exhibit 112. The

Ilntervenor-Respondents have attached the Pk as Exhibit A to

their cross-motion. Citations in this Ruling wall refer directly to

the documents themselves

L/a

had not provided sufficient evidence that it (1) was

continuously a community or (2) exercised political

influence over itS members throughout history. The

PE’ also raised a problem with regards to STN’

current membership, which excluded individuals who

had been ousted from or refused to be part of STN

STN provided sufficient evidence to satisfy the other

criteria. A roughly 8-month comment period followed

publication of the PI® and its record, during which

professional staff from the Office of Federal Ac

knowledpment “OLFA”), provided technical assistance

to the parties. (See FD at 4.) Extensive comments

were received on the PI, and STN was afforded the

opportunity to reply to the third-party comments

Following an evaluation of all of the evidence in the

record, the OFA professional staff determined that

STN did not meet all criteria in the regulations

because it did not provide sufficient evidence of com

munity and political authority for significant periods

of time. The OFA posed two questions to the Prin

cipal Deputy Assistant Secretary—- Indian Affairs in a

bricfing paper dated January 12, 2004:

(1) Should the petitioner be acknowledged

even though evidence of political influence and

authority is absent or insufficient for two sub

stantial historical periods, and if so, on what

grounds? and

(2) Should the S'TN be acknowledged (subject

to decision on Issue 1) even though a substantial

and important part of its present-day social and

political community are not on the current mem

bership list because of political conflicts within

the proup?

(S'TN’s Ex. 69 at 4.)

bdsua

On January 20, 2004, Principal Deputy Assistant

Secretary—Indian Affairs Aurene Martin, as acting

Assistant Secretary, issued the Final Determination,

notice of Which was published in the Federal Repister

on February 5, 2004. 69 Fed. Reg. 5570. The FD

answered both of OFA’s questions in the affirmative

and concluded that STN had met all seven federal

acknowledgment critena. The FD concluded that

notwithstanding the insuffiment evidence to establish

community criterion &3.7(b) or political influence cri

terion 83.7(c), the continuous historic state rec

oynition of the Schapghticoke, combined with a

state-maintained reservation dating to colonial times,

could be considered evidence to meet these two

criteria. (FD at 14.) Even without direct evidence in

certain time periods to meet the specific criteria, the

FD used state recognition as “evidence bearing on

continuity of the proup’s existence.” (/d.) The FD also

concluded that since the certified membership list

and the second list of unenrolled individuals retlected

the “actual” political community, and since the

Assistant Secretary—Indian Affairs did not have the

authority to acknowledge only part of a proup, the

two lists should be combined to define the ac

knowledgeable group. Ud. at 56, 58.) In conclusion,

the FD determined that STN merited federal ac

knowledgment

3. Political Response to the FD

What followed the FD in the so-called backroom of

Washington 1s the subject of much concern to STN,

one of whose central claims in this case is that the

ultimate RED was the product of undue influence

exerted by state and congressional political forces

There is no dispute that the majority of Connecticut's

Congressional delegation, the Governor, the Attorney

‘9a

General, and other anti-paming advocates in Wash-

inplon® fiercely opposed the FD’s acknowledgment of

OPN. It was public knowledge that state and local

interests urged the Department to reverse its ae-

knowledpanent decision. Representative Shays sumuned

up his position in a press release issued after the I'D

was announced:

ftUoas extremely disappointing the Bureau of

Jndian Affairs recognized the Schaphticokes as a

federal tribe. Beeause the state tribe only re

cently re-established family connections which

ceased penerations apo, it seemed clear they did

not meet the BIA eriteria of continuity from

pre colomal times. This recoynition may cnable

the Schaphticokes to build a casino, which |

bheheve wall be very detrimental to the state. We

have to respect the process, but I hope the state

“STN ’s petition before the IDOL only concerns federal ue

knowledpyiaent of the Schayhticoke tribal proup as a soveresyrn

Indian mation, and, insofar as has been presented to this Court,

melaude no mention of casino development or other Indian

pamunp enterprises. However, the cultural climate of the last

dozen years has created a tendency to equate tribal acknowledy

ment with casio development See, ep, Oversight HWearmyp on

the bed [ecopmition of Indian tribes: Hearnny Before the Sen

Comm on Pndian Affairs, LOGth Conp., 5. Hr. 109-91 (May 11,

2005), at 1O (Representative Chinstopher Shays: “lhe bottom

Hine for megs the recopvnition process is corrupt and has been for

years Itepretfully, Indian reeopruition is too often mot about

recoprizang: true Indian tribes, buat it as about Indian paminy

and the lreense to pronto money”) S'TN notes that at) first

petitioned for acknowledpment in 196), lony before the paming

repulations allowed casinos to be operated om Tidian lands

Common sense indicates, however, that much of the political

brouhaha aod community opposition to S'TN’s ceonornie ae

kKnowledpinent petition stems from concerns, whether, social, or

moral, about additional casino development inp Connecticut,

white hh i‘ already home to two ver y larpe Iridisan Casino!

YAU TE

uses all the resources necessary to seek to

overturn the decision. TP will continue to work

with Attorney General Dick Blumenthal to assist

himain any way I can with this process

(Vetrs kx. 8, Press Release, Christopher Shays,

olatement on BIA Decision to Kecopnize Schaphti-

cokes (Jan. 29, 2004), available at, http://www-house

pov/shays/news/ZO004/januaryjanbia htm Cast checked

Aup. 39, 200%); see also Pet'r’s Inx. 34, Press Kelease,

Attorney General Blumenthal, Attorney General

Asks for Moratorium on ‘Tribal Recognitions During

DC Meeting with Interior Secretary (March 17,

2004); Petr’s lux. 15, Press Itelease, Attorney General

Blumenthal, Attorney General Calls for Immediate

Kteversal of Schaghticoke Recognition Because of LIA

Itrror (Dec. 6, 2004); Fleming Dep. 143:12 184:)

(admutting that when it came to criticism by public

Officials, members of Congress, and top state political

Officrals, “this case is is one of the top.”).) There is

no question that throughout 2004 and 2005) the

Connecticut Congressional delepation, Connecticut

state and local officials, and other publhe and private

slakeholders,

the Town of Kent which hired the Washington

lobbying firm Barbour Griffith & Kopers (GI) to

mcluding @ Community orpanization in

advocate on its behalf, lobbied the Secretary of the

Internor, the BIA, the IBIA, the White House, and

even this Court about reversing the acknowledpiment

decision.” GSee, eg., Letter from kuben Barrales,

The kederal Wespondents dispute the characterization of

any relevant activities as “lobbying.” Althouph “lobbying” has

aequired #@ nepative connotation am recent year: my particular

When mention in relation to Indian affairs during this period,

When the povernment was wracked by scandals perpetrated by

lobbyists to Indian paming interest: its simple definition as “to

attempt to influence or sway (as a public officiaal) toward a

214

Deputy Assistant to the President of the United

mtates and Director of Interpovernmental Affairs, to

Connecticut Governor Jodie Kell (March 2, 2005)

Letter from Richard Blumenthal, Connecticut Attor

ney General, to Alberto Gonzales, Assistant to the

President and White Ilouse Counsel) (Dec. 15, 2004).

Norton Dep. 161:7-1); Letter from Ikteps. Johnson,

hay: and Simmons to the Jlon. Steven K.

lanscheid, Chief Administrative Law Judye, IBIA

(eb. 10, 2005), email from Jackie Cheek to Lee

hleming, Aurene Martin, Theresa Hosier, George

kKibine, et al. (July 19, 2004); Iiemail from Lee

bdenmuny to George Skibine, Aurene Martin, Jackie

Cheek, Theresa Rosser, et al. (July 20, 2004); Letter

from Governor tell to the lon. Peter C. Dorsey, U.S

District Court for the District of Connecticut & July .

ZOO5) latter from the Hlon. Peter CC. Dorsey to

Governor Kell (Aug. 19, Z2005).) The open question in

this matter is whether this lobbying exerted improper

pressure on apency officials and amounted to undue

political influence on the apency proces:

In carly March 2004, members of the Connecticut

Congressional Deleyation sent multiple letters to

Gale Norton, who was at that time Secretary of the

Interior, expressing concern that the ID was not

based on the apencys regulations or existing pre

ecdent and urging her “to take personal action and

mvestipate what appears to be yet another instance

ofa flawed tribal recognition process.” (Petr's ix. 44,

Letter from Conn. Conpressional Deleyation to Gale

desired action Merriam Webster Onhine Dictionary, avilable

hittys s/w AW merrniam- webster com/dictionary/lobby (retrieved

Aup. 319, 2006 Which aplly deseribe Lhe undisputed interac

lions between vanous political actors and apyency officials docu

mented in the record in this ¢

L440

Norton (March J6, 2004).) On Mareh $0, 2004,

Secretary Norton had a meeting on Capitol Hill with

Representative Frank Wolf of Virginia’ and Repre

sentatives Nancy Johnson, Christopher Shays, and

Ktob Simmons of the Connecticut delegation. Secre

tary Norton testified in her deposition that the tenor

of her first meetangy with the Conpressional delepa

Lion Wak “fairly emotional.” GSee Norton Dep. 167:

9-12.) When asked whether she apreed that Kep

resentative Wolf and the Connecticut delepation were

“pressing” her to overturn the FD, Sceretary Norton

replied: “That was the outcome they wanted.” Ud. at

141:7-11.) Representative Wolf threatened to tell the

President that Secretary Norton should be fired,

apparently in response to her peneral handling of the

BIA Cand not speesfically in connection with her

failure to reverse the STN decision, as Petitioner

suppests). Ud. at 166:15-17.) However, Norton testi

fied at her deposition that she does not “recall exactly

What J said in response to that comment, but I did

not lose any sleep over that threat.” Ud. at 168:21-

169-1.) She also testified with respect to Kepresenta

tive Wolfs threat, “J did not anticipate that anything

would come of that threat even af he did follow

through and call the White House. And in fact,

nothing did come from that.” Ud. at 264:10-265:G.)

Furthermore, when asked “what impact) did your

communications with the Connecticut Conpressional

Delepation have in reaching the Reconsidered Jinal

Yr »

Determination on the STN,” she responded

* Kepresentative Wolf was a member of the House Appropria

tions Committee, which holds fiscal jurisdiction over the Depart

ment of the Interior, and # vocal opponent of Indian paming

(eC Norton Dep 16.3°3.4-18 )

238

[Mjuch of what they raised was irrelevant. The

questions that are appropriate are those that

really po to whether evidence lias been submitted

that meets the criteria. They did have un effect

mm asking me to have the Inspector General pive

high prorty to the investiyation that they had

requested to make sure that the process was

beiny handled in a valid way. [ don’t belheve that

their anput had any effect on the substantive

outcome of the Determination

(Id. at 261:4-22.)° Secretary Norton did, however, tell

others in the Department, including her senior lea

dership team, about the March sOth meeting and

Kepresentative Wolf’s threat. dd. at 171:4-12, 172:7-

19.) On April 1, 2004, Secretary Norton had a second

mecting on Capitol Hill with Representatives Shays

and Johnson, also joined by Senators Joseph Lieber

man and Christopher Dodd and Kepresentative Itosa

DeLauro. Secretary Norton was accompanied by her

congressional laison David Bernhardt. (Norton Dep.

175:20-176-9.)

AG Blumenthal, Senator Christopher Dodd, and other:

requests d an In: pector (Gieneral’s inve: ligation into whether any

source of undue influence had affected the kD. (See, ey., Petr’:

lux. 25, Taetter from karl EF Devaney, Inspector General, to

penator Dodd (Aup. 27, 2004).) The Inspector General conducted

an investigation but found no evidence to support the allegation

that lobbyists or representatives of SUN directly or indirectly

influenced LIA offiaials to prant S'TN federal recopnition. “Al

though the SUN recognition decision was highly controversial,

we found that OFA and the Principal Duty Assistant Secre

tary —indian Affairs conducted themselves in keeping with the

requirements of the admanistrative proce: their decision

making process was made transparent by the administrative

record, and those parties appreved by the decision have soupht

rehief in the appropmate administrative forum —each as it

should be.” dd. at b-4.)

244

In duly 2004, Kepresentative Johnson contacted

the BIA to request a meeting with apvency officials,

including: Principal Deputy AS-IA Martin, in order toa

deliver to the BIA &,000 survey postcards from her

constituents stating that they opposed opening addi

lional casinos in’ Connecticut. In an email to staff,

OFA Director Lee Fleming described the survey

posteards as a “PR ploy”:

Part of the purpose of the administrative

procedures is to remove the influence of political

pressures from the acknowledgment proces:

Opposition by state and local yoverniments .

not taken into account if it is not based on the

eniteria. Only evidence relating to criteria is con

sidered in the decision. Letter-writing Campaigns

by local citizens, whether in support of or in

opposition to a petition, do not influence the

recommendations that are made to the Assistant

secretary—Indian Affairs

(Petr’s Iex. 48, Iimail from Jee Fleming to George

Skibine, et al. (July 20, 2064).) Following these Con

pressional meetings, Principal Deputy AS-IA Martin

and Mr. Bernhardt were called to a meeting with

three or four White House personnel, including

then-Director of Domestic Policy, Margaret Spellings,

in the West Wing to discuss the S'TN’s acknowledg

ment process. (See Petr’s lex. 21, Shapiro Decl. P 4.)

Ms. Martin beleves that there were one or two

subsequent meetings attended by Mr. Bernhardt and

other high officials from the Department with White

House representatives to discuss S'TTN and the FD (rd.

5), though the parties have produced no documents

or direct testimony to substantiate that those meet

mpgs occurred

PASTS

Meanwhile, S'TN’s FD became the focus of House

and Senate subcommittee hearings attended by DOI

staff, members of Conpress, AG Blumenthal, and

others. See Fed. Recognition & Acknowledgment Pro-

cess by the BIA: Hearing before the House Comm. on

Ktes., LO&th Cong., HAR. Serial No. 108-89 (March 31,

2004) (the “March 2004 Hearing”), at 1-2, 5-14, 90-97,

103-05; Betting on Transparency: Toward Fairness &

Integrity in the Interior Dep't’s Tribal Recognition

Process: Hearing before the House Comm. on Gov't

Kkeform, lO&th Conp., LIAR. Serial No. 109-198 (May 5,

2004) (the “May 2004 Hlearing”), at 2, 7, 21, 28, 31-35,

54-55, 59, 65-66, 97-98, 101-02, 104-06, 1380, 143, 146,

176, 196; Oversipht Hearing on the Fed. Kecopnition

of Indian Tribes: Wearing before the Sen. Comm. on

Indian Affairs, 109th Conp., S. rg. 109-91 (May 11,

2005) (the “May 2005 Hearing”), at 9-10, 14-15, 17,

39, 93-94, 107-09, 114-15, 119-20, 133-37, 140-41,

14-46, 149-52, 181-83, 211. At the March 2004

Hearimy before the House Committee on Resources,

Kkepresentative Johnson called on the Committee to

‘Snvahdate the Schapyhticoke decision,” which she

described as “flawed and illogical,” and “impose a

moratorium on fall] BIA acknowledgment decisions

pending a comprehensive review of the BIA process.”

March 2004 Hearing at &, 14. Representative Shays

testified that the agency decided to grant STN

recognition “even though it seemed clear that they

did not meet the BIA criteria for proving continuity

from pre-colomial times.” /d. at 9. ‘The “unfortunate

reality highhphted” by the S'TN decision, Shays

added, “is that the BIA quite clearly did not decide

this case on the merits.” /d. Representative Simmons

testified that the “record is clear that BIA is breaking

its own rules to reach their own desired outcome and

that of petitioning proups and their wealthy financial

26a

backers. The recent Schaghticoke decision is a case in

point.” fd. at Jd. OFA Director Lee Fleming was

present to witness these and similar comments. Jd. at

W1-18

At the May 2004 Hearing before the House

Committee on Government Reform, Chairman ‘Tom

Davis acknowledged in his opening statement that

the reason for the hearing was to address” the

concerns of the Connecticut Conpressional Delegation

with respect to the acknowledpments of S'TN and the

Connecticut-based Kastern Pequots. May 2004

Hearing at 2. Connecticut Attorney General Richard

Blumenthal testified that the STN FD was

as unprincipled as it [was] unprecedented

Never before has the BIA recoynized a tribe that

is admitted by the agency itself to completely

lack evidence on two key required standards over

decades . And never before has the BIA so

twisted and distorted State recopnition to cover

its deliberate disregard for absent evidence

Id. at 2%. Theresa Kosier, Counselor to the AS-IA,

and Inspector General [arl le. Devaney testified at

the May 2004 Hearing, and they were repeatedly

asked by the Committee to defend the ID or concede

that the agency had erred, culminating in a heated

exchange in which Representative Simmons apolo

mized for losing his temper. /d. at 55. Representative

Wolf interjected by referring to the “corrupt [ac

kKnowledyment}] process” and suppestings that the

Department should be “held in) disprace” in’ the

memory of all prior secretames. /d) He added that the

Department had made a mistake in not imposings a

moratorium on all acknowledgment decisions and, if

ib was not fixed, “the fault would lie at the steps of

secretary Gale Norton and this Administration.” /d

Zila

Representative Shays also questioned Theresa Koster

extensively on the evidence mecessary for a tribal

yroup to present to demonstrate continuity. See id. at

61. OFA Director Lee Fleming was present for this

hearing but did not testify. /d. at 36.

Qn March 38, 2005, Representative Johnson intro

duced legislation in the House of Representatives

titled the “Schapghticoke Acknowledpment Repeal

Act.” TEAR. Res, 109th Cong. (2005) (Pet’r’s Ix. 33.) In

a press release issued on March 4, 2005, Representa

tive Jdolinson, explaiming why she introduced the bill,

stated

The BIA’s decision was erroneous and unlaw

ful, and it simply cannot be allowed to stand. . .

This decision was made by ignoring evidence,

manipulating federal regulations and overturn

ing precedent. The consequences of this decision,

including a casino in Western Connecticut, would

be deep and irreversible. Local taxpayers would

face increased financial burdens, our infrastruc

ture would be overwhelmed by the round-the

clock traffic, and huge areas would be subject to

land claims. ‘This bill makes sure that the people

of Western Connecticut are not made to pay for

the erroneous and unlawful decisior of the BIA

(Petr’s Ex. 34, Press Release, Representative Nancy

Johnson, Johnson Introduces Bill to Repeal Schagh

ticoke Recognition (March 4, 2005), at 2-7.)

On May 11, 2005, the Senate Committee on Indian

Affairs held an Oversight Hearing on the Federal

Recopnition of Indian trmbes. Governor Rell, AG

Blumenthal, and almost the entire Connecticut Con

pressional delegation participated in’ the hearing,

prompting Bah lobbyist to consider it an “EM pressive

turnout.” (Monroe Dep. 314:19-315:5.) AG Blumen

thal asked that Congress abolish the OFA’s tribal

recognition authority and impose a six-month mora

written testimony that “the BIA’s political leaders

torium on all recognition decisions, explaiming in his

have disreparded the [seven mandatory criteria],

misapplied evidence, and demed = state and local

povernments a fair opportunity to be heard.” May

2005 Hearing at 89. Governor Kell testified that the

“BIA is awarding Federal recognition to tribes re

pardless of evidence to the contrary,” adding that

“historical reservation lands no longer exist as such,

and haven't for well more than two hundred years

They are now cities and towns, filled with family

homes, churches, schools, shopping areas, and the

like.” 7d. at 18-14. Senator Lieberman attacked the

RD as an example of a “process that smacks of

outright manipulation and abuse of povernment

authority.” /d. at 139. Representative Johnson testi

fied that the OFA’s “erroneous and unlawtul decision

to acknowledge the [S'TN] was made by ignoring

evidence, manipulating federal regulations, and over

turning precedent.”” /d. at) 138. Representative

Simmons stated, “Indeed, there is no better example

of this disregard tor the regulations in place than in

the case of the Schaghticoke decision.” /d. at 181.

OFA Director Lee Fleming and Deputy Inspector

General Mark Kendall also appeared at the May

2005 hearmy and testified on behalf of the agency. /d

at lo

lr carly 2005

Cason certain duties of the Assistant Secretary-

Indian Affairs

Contrary to Petitioner's representation of the evi

Seeretary Norton delegated to James

’

including: acknowledgment decisions

’

dence presented, Mr. Cason testified that at some

point in 2005 he told Secretary Norton that he would

2uva

be making the reconsidered final determination. He

did not recall when that occurred, but the conversa

tion was short and he told her what the outcome

would be. Secretary Norton responded “okay, fine,”

and did not urpe him to take any position in

particular, nor did she inquire about the substance of

the decision. She also did not tell Mro Cason her

views on the oripinal positive determination, and he

never inquired of her whether she had been involved

in the positive determination because “it was not

relevant.” (Cason Dep. 106:16-108:13.)

1. The IBIA and The RED

While the political actors worked to encourage the

BIA to reverse its STN FD and/or impose a morato

rium on the review of federal acknowledpment

petitions, the Intervenors filed a timely request for

reconsideration of the FD with the Interior Board of

Indian Appeals CIBIA") Amonp other things, the

lntervenors argued that: (1) the FD erroneously used

the State's relationship with the Schaphticoke as a

substitute for otherwise wholly absent or insufficient

evidence of community and political authority; (2) the

analysis of Schaphticoke marriage rates were impro

perly calculated and used to satisfy criteria (b) and (ec)

for extensive periods, contrary to the regulations and

pnor precedent; and (3) the FD'’s conclusion that

criteria (b) and (c) are satisfied despite the inability

of the STN to enroll a large number of significant

Schaghticoke individuals was based on unlawtul

administrative flat rather than probative and reliable

evidence. The Intervenors and S'TN filed briefs ad

dressing these issues. After briefing was concluded

OFA filed a “Supplemental ‘Pransmittal’ on the mat

rage issue, in which it stated that the FD “is not

consistent with prior facknowledpment|] precedent in

40a

calculating the rates of marriages under [25 C.F. 8}

83.7(b2)i0), provides no explanation for the inconsis

tencyl, and] there is mo evidence that the [ED]

intended to deviate trom precedent.” (Pet’r’s Ex. 73)

The OFA also stated that there was a material

mathematical error that lowered the marriage rate:

below the threshold 50 percent for one period and

that the marnage rate analysis should accordingly

not be affirmed. Ud. at J.)

In a decision dated May 12, 2005, the IBIA vacated

the FID) and remanded the STN petition to the BIA for

further consideration. In re Fed. Acknowledgment of

Schaghticoke ‘Tribal Nation, 41 IBIA 80° (2005)

(Pet’r’s Ex. 112). Following its decision an In re

Federal Acknowledgment of the Historical Mastern

Pequot ‘Tribe, 41 IBIA 1 (2005) “Eastern Pequot”),

issued the same day, the IBIA concluded that the

State of Connecticut's ‘implicit: recopnition of STN a:

a distinct political body “is not relhable or probative

evidence for demonstrating: the actual existence of

community or political influence or authority within

that group.” 41 IBIA at 84. Rather, “the evidentiary

relevance and probative value of such a [state] re

lationship depends on the specific nature of the

relationship, the specific underlying imteraction be

tween a state and a petitioner, and how that relation

ship and interaction reflect in some way one or more

of the elements in the definitions of ‘community’ of

‘political influence or authority’ contained in section

S4.1° of the regulations. /d. at 16. ‘Po be probative

the state relationship “would need to be more than

‘npheit,) and would need to be expressed in soma

Way that reflected the actual or hkely existence of

those interactions and socal relationships’ within

the petitioner's membership. /d@. at 18. The IBIA

concluded such a state relationship must be deter

mained on a case and fact SPecen basi La at Lb

Similarly thie PRIA concluded that ‘1 hptlicit Lite

recopmition failed to meet thr political Croverion. oO]

S3.¢(c). The essential requirement of criterion |

“that yroup leader influence thr Opl1o08n Or aclion

of a substantial number of group members on 1 rT

reparded ra ts significant LO thie PrOUp at a Whole ana

that] the actions ot leader are influenced by thr

roup id. at 3. “We fail to ee how ‘dmaplicit state

recopnition of a group as a political entity constitute

probative evidence that the praup clually exer t

political influence or authority, and that there ar

Clually leaders and followers in a political relation

hip. ld Concluding that the use of state recoyvnitlol

Was a Substantial portion Of Ulie evidence relied upo

by thre Department and could attect the Department

ultimate decision, the IB Vacated and remande

the f'D to the Department. /d. at 21-28, 64, 25 COPEL

\fter thie lter \ remanded PN filer

OLION 1 th Court 1 ( mipel Cte BIA ft rece

lditional evidence i ot por tech Cail \

Cirrice In linn OTC! lated July WI) U? ( url

permitted the BIA to provid technical ta

Ctl thie roi L¢ ibmat ney (] \ mci roi

torical evidence md the parti to fi upplemental

Viotion to Amend Schedul Order, DD '

HWORH-1078 (RCD) () 1] 1) ’

hoy) Pua

() (o)ctol \ { Ley I rey

Lrnie ( ! bed hb LD I

ition. follows eases Lire

nitiol " 1d L ( I

withr thee schauphticoke and determine LTLiat it alo

nol provide evidence Tor potity | ntivaence oF iit !

ity within the Schavhiticoke rad Ute State did n

formulate its policies towards th chaghticoke | ed

oO] Lrie recoyvnition ol t tae CXISLTEeNC Ot I) iter)

political relations within the Schayhiticoke { ame

Phe REID also analyzed the marniayve rates within tl

Schaghticoke yroup during: the nineteenth Cente

pplying different method y mad been

| yed in deter} Lit) it I} ) ! CO ‘

1 riage rate Hever excel ead th , DEFCeHE -UFiFt

an d required t Listy cme! I ] / T dl

Che RED theretore concluded that there \

it evidence tf { l the ¢ MmuUunIwyY Criverl ]

pproximately ! ty PILO- Le Tome &

Bid "O04 { ] evidence either u rae

I i com matllo OI e\ | Lice l ( ! t

nd that there ' 11 mit ¢ Li

Led rate | it L influence oO Hority

moe! 1! } | ty | ( " |

Mo-2OO4. I pyporONti { \ Lf

ié | t pro 14 T| | eG? F ( | i’! 1] |

Picat at 1 Indian tribe « KI

{ a] \ VOILE { | bial

(| | \ i |

\ i ! i I

| ;

\ 1) [ I { | ! [

( QT \ | i { [ |

Lé | i ia | | i y

rit ci , ‘ i '

oT l i

o ae

edbeval

ko Supp 4d 19%, 200 0D Conn 2006) An administra

five adjudication as “invalid af based in whole or in

parton feonpressionall pressures.” Destrict of Colum

hia hedu of Civic ASS ns v Volpe, 146 U.S App Ly.

207, 459 bo 2d 1251, 1246 (C. Car), cert. dented, 405

U.S. 1030, 92 S&S. Ct. 1290, 31 L. Ed. 2d 489 (1972)

(“Volpe y “Conpressional interference so tainting the

administrative process violates the npht of a party to

duce process of law” ATX, Inc. vo. United States Dept

of Trans, $09 US. App. D.C. 367, 41 bodd 1522, 1527

(yb) Cur, 1994) Ceiting: Volpe, 459 bi2d at 1245-49)

“A court must consider the decisionmaker’s input, not

the depuslaters output. The test as whether ‘extra

neous factors imtruded into the calculus of considera

tion’ of the andividual deqasionmaker.” Peter Krewe

Sons’ Co vo United States Army Corps of np rs, 230

US. App. 1.0. 72, 714 2d 165, 170 OD, Cir, 1985)

(“Kiewit”) (quoting Volpe, 459 bo 2d at 1246)

Congressional anterferenee an the administrative

proce is Of particular concern ino a quasi-judicial

proceeding, and judieral review of such a process is

puided by two principles ATX, Ince., 41 Bogd at 152%

horst, “the appearance of bias or pressure mary be no

less objectionable than the reality.” Volpe, 459 Ie2d

at 1746-47 (emphasis added), see also Kontay, Inc. ov

Andrus, 168 U.S. App. D.C. 336, 540 F.2d 601, 610

(OC!) Cur), cert. dented, 4389 US. 1052, 99 &. Ct. 743

Bed. bd. Yd 71% 01978) Coonpressional letter “com

promused the appearance of the Secretary's impartial

ty’) Seeond, “padioal evaluation of the pressure

must focus on the nexus between the pressure and

the actual decision maker.” ATX, Ine., 41 Idd at

1627 (emphasis an onipanal) “Phe proper focus is not

on the content of conpressional Conmmunications in

the abstract, but rather upon the relation between

the communications and the adjudicators decision

‘

Maakin{s proces: Kiewit, 414 k.2d at 169-70. With

respect to the nexus requirement, courts have “never

questioned the authority of conpressional representa

lives to exert pressure,” ATX, Inc, 41 F.3d at 152k

(Catunpe Volpe, 459 2d at 32449), and “conyressional

actions not targeted directly at the decision mak

Cl uch as contemporaneous hearings do not in

ahidate an apeney decision” fd. Couung Konia, 560

kh Yd at GIO)

There as mo question that political actors cxerted

pore are on the Department over the course of 2004

and ZOOS in opposition to the BD's acknowledpyment

Of SPN, both publely through Congressional hearing:

and media pubheity and privately through mectiny:

nd correspondence with the Secretary and = othes

yreney Offierals. The issue for the Court to determine

i Whether the evidence presented shows that the

pressure exerted can be deemed to have actually

bifluceneed the decision maker who issued the RieD

In this case, the evidence presented does not per

agade the Court that the Conpressional hearimnyps, ex

parte Com munieablions between lepaslator: and apeen

ey officials, or the publicity on the issue as a whole

ultimately affected the Dc partment: decision to wssue

Congressional hearings are not inherently impro

per Whenever them anquiry touches on or arses from

a pending administrative matter ATX, Inc., 41 F.3d

at J527-246) Such hearings, even al contemporuneou:

“ith an admanistrative procecding, are not unusual

and do not constitute improper interference or pre

ure When the aquiry docs not probe the decision

Hicker mental proce and does not specifieally

eneourapve the decision maker to make its decisions

on prounds other than required by appleable law. /d

pedal

There have been astanees where courts have found

that Conpyressional hearmps have interfered with

Onpomp Quasiyudicil apency procedures, see, e.y.,

Pillsbury Co. o. Fed. Trade Comavn, 354 2d 95!

(Sth Car. 1996), and courts should not “shruy off a

procedural due process claim merely because the

Officials involved should be able to discount what is

said and to disrepard the force of the intrusion into

the adjudicatory process.” Id. aut 964. However, in

Pillsbury, the leading case on this issue, Senators at

the Conpressional heannyp pomt-blank asked the ed-

eral Trade Commissioner, the actual decision maker

in the pending apency process, why he had made

specific decisions in repards to the petition under

review, to the poimt that he felt compelled to recuse

himself from the commission proceedings following

the Senate hearmys. fd. at 952-54. Where Conpres-

sional hearings do not call the actual decision maker

to testufy on a pending decision, however, the hearimy

does not amount to improper influence which war-

rants invalidating the subsequent apency decision.

For cxample, in Nontap, lne., Villape of Uyak vo.

Andrus, 168 USS. App. D.C. 33%, 580 F.2d 601 (1978),

the petitioners moved to invalidate DOL decisions

finding certain mative Alaskan villayes inelipable to

lake dand and revenues under the Alaska Native

Claims Settlement Act when conpressmen expressed

disapreement with puuor elipibility determinations at

a Conpressional hearing contemporancous to the

apencys review of petitioners’ Claims. The DLC. Cit

cuit Court of Appeals held that Pillsbury wus not

controlling: because none of the witnesses called be

fore the Subcommittee was a decision maker in the

petitioners’ cases. fd) at GIO) Even if Pillsbury ex-

tended to the advisers of the decision maker who

were present at the hearmy, those advisors weren't

36u

Called on at the heanmny to preyudpe any of the

pending Clamms. /d. Ceitinp Pillsbury, 354 2d at

9654)

The Conpressional hearmyps in this case reviewing

the BIA’s acknowledpment processes do not: amount

to undue interference with the Department's RID of

STN’s status. There is no question that, as discussed

above, vamous members of Congress as well as the

Connecticut Governor and AG expressed their dis

approval with the S'TN acknowledgment at the Con

pressional hearimys on the subject, and the hearings

became heated on at least ome occasion. However,

nothing in the reeord shows that these hearings had

any impact on Associate Deputy Secretary Cuson, the

decision maker for the KED. The Secretary's lepisla

tive hiaison David Bernhardt testified that he was

penerally aware of the hearimpys but did not discuss

them with Cason. (Bernhardt Dep. 121.) Secretary

Norton could not even reeall anything about the

190-91,

212), and Cason could mot recall knowing about the

heamnps at her deposition (Norton Dep. 187,

hearmys or being told anything about them. (Cason

Dep. 47-49.) OFA Director Lee Kleming was present

atthe hearings, but he testified at his deposition that

he was not intimidated or influenced by any of the

congresspersons or the Attorney General. C*leming

Dep. 170-72.) The facet that Representative Johnson

introduced lepislation to specifically reverse the De

partments acknowledgment of STN also does not

constitute undue influence that should invalidate the

RL) beeause lepislation does not) solely uddress

apemcy decision makers. ATX, Inc. 41 F.3d at 152%

fatings Aoniay, 580 FL2d at 610). Moreover, Norton,

(Clason, and Bernhardt all testified that they had no

recollection of the Johnson bill, which tends to

suppest that it did not seriously impact their decision

3f2a

making. GSee Norton Dep. 245; Cason loop 40-41;

Mernhardt Dep 119-20.)

Similarly, nothing awn the record convinees thie

Court that the lepgaslators’ ex parte Communications

qither through written correspondence, public an

nouncements, or at amectings with Department

officials, actually influenced the decision making

process resulting in the RD. Although the Capitol

Hall meetings were admittedly heated and unques

Gionably arranged so as to lobby Secretary Norton to

revise the acknowledgment determination, the record

does not show a nexus between them and the apen

cy’s ultimate decision to revise the STN acknowledy

ment decision. Both Cason and leming testified that

no one talked to them about the particularly con

fentious mecting at which Representative Wolf

threatened Secretary Norton (see Cason Dep. 53-54,

hleming Dep. 65-67), and Secretary Norton testified

that she did not take the threats seriously. (Norton

Dep. 1689, 275-76.) The Department officials de

posed in this case uniformly testified that none of

these communications, or any other Congressional

activity, had any impact on the decision making

process that culminated in the KD. GSee Norton

Dep. 112, 183, 161; Cason Dep. 91-92; Fleming Dep

164-75, 190-93.) There is no evidence that Mr. Cason

even had any direct contact with the Connecticut

Conpressionual delepation, the White House, any state

officials, or any lobbyist concerning STN. Ato has

deposition, Cason testified that he did not receive,

directly or mdirectly, any communication from the

Connecticut Conpressional delepation, any state

officials, or BGR, and he did not consider any factors

or eriterna that were not discussed in the RED

(Cason Dep. 50-51, 65-66, 75-76, 82, 130.) See Kiewit,

714 kk 4d at 170 (decision maker not “tainted” hy

“4 Sd

Conpressional power where no evidence that the

ultimate decision maker was aware of a Senator:

letters to Department of Defense, no evidence the

Senator contacted him directly, and no evidence that

the Department offiaals who had spoken to the

Senator then contacted the decision maker.) Al

though one may be sympathetic to S'TTN’s suspicions

that powerful political forces interfered with an

independent review of them tribal recognition, the

Court must accept the evidence as presented at face

value, ino particular the testimony by the apency

decaisionmakers that they were not unduly pressured

by particular politicians or the political climate at

larpre

ln sum, the evidence presented by S'TN does not

show that the legislative activity actually affected the

outcome on the merits by the BIA. See ATX, Inc., 41

Sd at 1529; Kiewit, 714 F.2d at 169; Volpe, 459 F.2d

at 1246. Nothing suppests that the actual decision

maker was impacted by the pohtical pressure exerted

by state and federal lepislators or their surrogates

Neither the IBIA decision nor the RED mentioned the

testimony of the conpresspersons, the congressional

letters, or the proposed lepiuslation, see ATX, Inc., 41

MoS$d at 1529, and the Secretary and other deposed

Department officials testified that the Congressional

delegation had no impact on their work or ultimate

decisions. Granted, it may be the case that Conpres

sional pressure compromises an administrative pro

ceeding even where the reeord would allow” the

decision maker to reach the same conclusion indepen

dently. ATX, Inc., 41 F.3d at 1530. An administrative

decision must be based “strictly on the merits and

completely without repard to any considerations not

made relevant by Congress in the applicable sta

tutes.” Volpe, 459 F.2d at 1246. Here, however, the

$94

nexus between the pressure exerted and the actual

decision makers is tenuous at best, and the evidence

adequately establishes S'TN’s inchpibility for tribal

recognition. See ATX, Inc., 41 FoSd at 15380. Accor

dingly, the Court concludes that political influence

did not enter the decision maker's “calculus of con

sideration.” In the absence of such mterference, there

is no clear violation of STN’s due process rights to

justify this Court’s extraordinary interruption of the

administrative process. See Kiewit, 714 2d at 170

( Arbitrary & Capricious

Petitioner STN next argues that the RED must be

invahdated because it is arbitrary and capricious

STN contends that the Department's KID was arbi

trary and capricious because the Department's state

recopnition analysis in the RED failed to adhere to

the IBIA’s decision and inadequately explained its

reasoning. STN also contends the RED was arbitrary

and capricious because STN has in fact satistied the

marriage rate criterion of & &3.7(c) and the methodol

opy cimployed by the Department in the RED to

determine S'TN marnape rates was unreasonable,

arbitrary, and capricious. S'TN has a heavy burden of

proof in establishing that the Department’s RED

cannot withstand judicial review. An agency’s inter

pretation of its own regulations is entitled to defe

rence, Chevron v. Natl Res. Def Council, 467 US

837, $44-45, 104 S. Ct. 2778, 81 LL. Ed. 2d 694 (1984):

Auer v0. Robbins, 519 U.S. 452, 461, 117 S. Ct. 905,

137 L. Ed. 2d 79 (1997); Masayesva v. Zah, 792 F.

Supp. 1178, 1187 CD. Ariz. 1992) (same in the context

of a BIA repulation), as is the weight piven to the

evidence by the agency. Miann Nation of Indians, 55

ko Supp. 2d at 925. Because evidence of both commiu-

nity and political influence or authority throughout

AOua

history are mandatory critera under the federal

acknowledgment regulations, this Court will only

remand the petition to the apency ifat finds that the

decision on each of the criteria was arbitrary and

capmcious under the AVA. As long as the evaluation

of the evidence under &3.7(b) and (c¢) in the RED i:

reasonable based on the agency's interpretation of

the regulations, the RED should be affirmed.

f. State Recopnttion

In remanding the state recopnition issue to the

Department, the TIBIA instructed the Department to

“articulate specifically how the State’s actions toward

the [petitioner] durings the relevant time periods)

reflected or andicated the likelihood of community

and political influence or authority within’ S'TN, a:

those concepts are defined in 25 CURR. §& &3.1. 41

IBJA at 21. S'TN also contends that it was incumbent

upon the Department to explain the constitutional

federalism principles which Secretary Norton had

considered ain evaluating the weight to place on

Impheit state recopnition, although nothing ino the

reyulations themselves or the IBIA decision man

dates the Department to do so. STN now argues that

mstead Of attempting: to support its prior decision

under the new IBIA standards, it reached a “com

pletely diflerent decision that had nothing to do with

che TBTA’s new standards or the policy considerations

that the Department had orginally relied on.” (Pet’r’s

Mem. in Supp. of Mot. for Summ. J. at 6%.) This is a

gross overstatement which misinterprets the IBIA’s

ruling and misrepresents the RED, which presented a

reasonable and cogent analysis of the state recopii

tion issue as instructed by the IBIA

An apvency is entitled to reverse course on a dec

sion, so long as it: provides a reasoned analysis for

Via

doing so. State Farm, 463 U.S. at 56, 1038S. Ct. 2856

Having reviewed the RED, the Court concludes that

the Department came to a researched and well

reasoned conclusion repardings the state recopnition

issue. STN contends that the Departments reconsi

dered state recoynition analysis was “truncated,

conclusory, fand] nonsensical.” (Pet'i’rs Mem. at 76.)

This representation of the analysis in the RED is

baseless. The RIED devotes 14 pages to an analysis of

the IBIA’s state recognition instructions and ai re

evaluation of the evidence presented proving the

clements of state recopnition. See RED at 45-58. STN

also argues that the absence of other evidence in the

record to shed lipht on the Department's new conclu

sions reparding the state recopnition issues renders it

unreasonable. HLlowever, the RD stands on its own,

without any explanation by supplementary notes,

memoranda, email, or other documents to provide

Insipht into the Department’s analytic process

STN argues that the RED fails to explain why the

Department no longer believed that the state recogni

tion evidence contained in the record was entitled to

the FD ait had considered that same evidence to be

strony and probative. llowever, contrary to S'TN’s

interpretation of the IBIA decision, the IBLA did not

merely require the BIA to provide a better explana

tion for the weight at had accorded state recognition,

Rather, the IBIA clearly concluded that the FD’s use

of the State’s ‘impheat’ recognition of the S'TN as a

‘distinct: political body’ was not reliable or probative

evidence for demonstrating: the actual existence of

community or political influence or authority. re

quired for federal tribal acknowledgment. 41 TIBIA at

34. Although at as correct that the TIBIA did not

conclusively prohibit the use of evidence relating to a

42a

state’s relationship, it definitively concluded that the

Ml) had used state recopnition that was mconsistent

with the acknowledgment regulations dd ‘The IBIA

mstructed the BIA that af state recopnition was to be

used as evidenec, the BIA needed to identify aspects

of the State’s relationship with the Schaghticoke that

in fact demonstrated that the Schaphticoke had

existed as a community and had exercised political

authority; the mere existence of a relationship be-

tween the State and the proup or its members could

not alone fill in the large historical gaps im the

evidence of community or political authorty. See 41

[BIA at 16 (ln order for the State’s relationship to be

probative of the first) part of the definition of

‘community, it would need to be more than ‘implicit,’

and it would need to be expressed in some way that

reflected the actual or likely existence of those

Interactions and social relationships.”), /d. at) 18

(Onee again, we fail to see how ‘implicit state

recognition of a group as a political entity constitutes

probative evidence that the proup actually exercises

political influence or authority. . 2 . Rather, there

needs to be more than ‘implicit? recognition, and the

relationship between the State and the proup needs

to be expressed ino some way that reflects the

existence or likely existence not simply theoretical

or presumed—of political influence or authority

Withia the proupl.J7) The IBIA then specifically

evaluated the four elements of the State’s relation-

ship that had been rehed on by the BLA to support its

use of state recognition as evidence and found them

all hacking probative value. /d. at 16, 20-21, 34

Following, the instructions of the IBLA, the RED

also reexamined the State’s relationship with the

Schaghticoke, concluding, as it had in the FD), that

the State’s relationship was not explicitly or

mmphecitly based on a recopmition of a povernment

Lo-povernment relationship with the Ss hayhticoke it

on the existence of bilateral political relations within

the proup. RED at 48: see also FD at 14. The RED

then proceeded to reevaluate the underlying ele

ments of the State’s relationship whiuieh bid) pore

viously been used to support the use of state

recopmition: the purported moneitizenship status of

Indians in Connecticut, see RED at 49. the oversees

system which had oversipht responsibilities as to

Connecticut Indians, see wl at HO. the continuous

existence of a Schaghticoke reservation, see id. at 5O,

093-58; and the rationale for the State’s historical

relationship with the Schaphticoke. 7d. at Sl. ttas not

necessary for the Court to reiterat@ the evidence

presented reparding® each of these elements or the

RKED'’s analysis of such evidence. Suffice it to say that

In considering: cach of the elements, the RED pre

sents a thorough, rational, and well-reasoned evalua

tion, leading to the conclusion that they do mot add

up to demonstrate the actual existence of a political

community throughout most of the history of thie

Schaphticoke. The record supports the DOs conclu

sion on remand that the State's relationship, iis

understood through an examination of each of the

underlying elements and supporting record evidence,

does not provide the missing’ evidence of community

and political authomty that STN lacks to meet the

acknowledgment criteria

STN devotes extensive space in its brefs to email:

between OFA statters who drew diferent conclusions

about the state recopnition, as well as to the I*D’s

analysis of the State recognition issue, However, the

fact that reasonable minds within an agency may

differ in opinion on a piven issue does not render the

final analysis of the RED any less rational or defensi

44a

ble. Similarly, the fact that the FD was well-reasoned

is beside the pount when the TIBIA specitically over

ruled its state recopmition analysis and instructed the

BIA to take a second look at the available evidence

STN also argues that the Department's change in

position between the FD and the RED “must have”

been caused by political pressure, but there is ne

evidence in the record supgyestings a direet link be

tween the lobbying of certain Department officials

and the reevaluation of the state recognition issue in

the RED. On the contrary, the RED’s reasoned ex

planation of the state recopmition reevaluation,

premised on an accurate reading of the IBIA’s

mstractions op remand, and without any other evi

dence sugyesting improper influence on this particu

lar issue, withstands judicial scrutiny

‘>

Mari Lage utes

STN also claims that the REID is arbiteary and

capricious because its analysis of marrage rates was

contrary to the acknowledgment regulations, metho

dologically flawed, and lacking a reasonable explana

tion for its decision. A petitioner satisfies the commu

nity criterion of 25 CLELR. § 83.7) for any period in

which it has demonstrated that “lalt least 50 percent

of the marnages in the group are between members

of the group.” 25 C.FLR. §§ 83. 70b)\ 2.01) and (e(3)

STN had submitted evidence and analysis of its

marriape rates throughout the P9th century. OFA

evaluated this evidence and concluded in the FD) that

STN had demonstrated suthment marrage rates to

receive the benefit of the “carryover” provision under

§ 83.7(b)(2)° to meet its burden of proof to demon

Section 8&3 70008) links the community criterion in seetion

(b) with the political authormty criterion in section (eo) by pro

viding that a petitioner which has met § S30 7(bdC2) for a particu

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seeks: “The acknowledgment reyulations plainly refer

to the percent of marriages, not the percent of

members of the proup affected. Thus, the percent of

members participating: in in-proup marriages is not

relevant evidence for the 50 percent requirement of

the repulations.” RED at 10 (emphasis in original).

(See also Intervenors’ Ix. D, Little Shell Proposed

Minding at) 178-79)" The RED thoroughly engaged

S'TN’s proposed methodology and accompanying at

guments but ultimately concluded that the “use of

the term ‘marriages’ rather than ‘individuals involved

Inomarnapges’ within a proup reflects the intent of the

repulations to measure social links.” RFD at 14.

Deferring to the agency’s choice of methodology and

the Court

concludes that the RED’s marriage rate analysis and

weight afforded the evidence before it,

accordant findings are reasonably explained and are

not arbitrary or capricious.

STN insists that the RED erred in retying on this

interpretation and this methodology and advocates

the use of a different endogamy methodology. The

‘

)

OTN disputes that agency precedent employed the REFD’s

marriage rale analysis methodology, citing staff members’ reco!

lections, one in a hand-written note and one attested to in a

declaration, that other acknowledyment decisions had used

STN’s proposed methodology. However, Respondents point to

precedent from those acknowledgment decisions and show that

they used the RFD’s methodolopy, contrary to the recollections

of individual staffers. GSee, e.g. Intervenors’ Ex. FE, the Jena

Band of Choctaw Indians Proposed Finding.) STN also submits

evidence by staffers and other academics who recommend the

STN’s) proposed methodolopy. However, the existence of an

acadenue debate on the merits of different methodologies used

in the marnapge rate analysis does not undermine the Court’s

conclusion that in this instance the REID made a_ principled,

informed decision, based both on expertise and on agency pre

cedent, lo employ the particular methodology it did

48a

Court declines to engage in an academic debate about

Which endoyamy methodoloyy is most appropriate to

employ in this instance. Even this Court’s description

of the marriage rate methodology issue is admittedly

rudimentary, precisely because such anthropological

debates are outside the purview of this Court’s

expertise. The Court is confident based on a review of

the record that the professionals in the agency have

engaged with the academic debates on this issue and

made an informed, reasoned decision to make the

marriage rate analysis it ultimately did in the RED.

The Court does note, however, that the methodology

proposed by STN seems ill-suited to the regulations

at hand. STN argues that any methodology for cal-

culating marmage rates under § 83.7(b)(2)Q1) must

exclude from consideration any marriage that are not

marriages in the proup, meaning marriages to out-

siders are excluded from the calculation. (Pet’r’s

Mem. in Support of Mot. for Summ. J. at 87; see also

id. at 88.) Ignoring marriages of group members to

persons outside the group would always lead to

inarriagve rates of 100%, a result which even a layper-

son would conclude is absurd and does not measure

social cohesion as the regulations intend.

S'TN argues that the OFA’s changed course on the

marrage rate analysis must have been the result of

the improper political pressure “with little to no input

from the OFA professional staff (Petr’s Mem. at 87,

95), but the record instead shows that the RFD is the

result of the OFA’s deliberate, months-long investiga-

tion into the marriage rate analysis in the FD and

the need to correct it on remand. The record demon-

strates that OFA questioned the marriage rate cal-

culation on reading the I!ntervenors’ request for

reconsideration before the IBIA, held a meeting on

July 14, 2004 questioning the interpretation in the

AQ9Aa

FD, and set a meeting agenda in August 2004 to

discuss the issue further. (See Admin. Record

AC-VO15-D0005, BR-V013-D0050; Pet’r’s Ex. 102.)

These meetings culminated in a briefing paper pre-

pared by OFA, dated November 16, 2004, which

points out the inconsistency in the STN FD from

acknowledgment precedent and provides options on

how to proceed. (Fed. Resp’ts’ Ix. H, “Briefing Paper

on Schaghticoke Reconsideration Request,” at 2.) In

the briefing paper, OFA recommended that it file a

transmittal before the IBIA to insure that the errors

can be corrected and the IBIA was advised of the

precedent. Ud.) OFA also noted the difficulty in

remaining silent while the IBIA reviewed the case

over the course of the year, raising “questions con-

cerning how to evaluate acknowledgment cases” and

“what technical advice to provide petitioners” in the

interim. Ud.) This evidence all suggests the profes-

sional staff in the agency was doing its job reasonably

and responsibly. (See also Norton Dep. 53, 58 (testify-

ing that if a mistake was made, it needed to be

corrected); Bernhardt Dep. 102-3 (in order to main-

tain the integrity of the administrative process,” the

OFA should inform the IBIA of any error.).)

The Court also recognizes that the marriage rate

analysis in the FD and the RED impacts only 50

years of political influence criterion (c) but does not

impact the deficiencies in evidence concerning

political influence for the other 115 years for which

the RFD found that STN failed to meet § 83.7(c).

Thus, even if the RFD’s marriave rate analysis was

arbitrary and capricious, STN would still fail to meet

political criterion (c) because of the other sigmificant

time periods for which it failed to provide evidence

demonstrating political influence or authority.

50a

3. Community and Political Authority between

1996 and 2004

STN also claims the REID was arbitrary and

capricious because it abandoned precedent and failed

to explain its new reasoning when it determined that

the STN had failed to satisfy criteria (b) and (c) for

the period after 1996 on the basis that a significant

number of Schaghticoke individuals refused to con-

sent to STN membership. ‘These individuals comprise

two groups, the Schaghticoke Indian Tribe (@SIT”)

and members of the Copggswell family, who oppose

the current leadership and federal recognition of

STN. The SIT has submitted its own petition for

federal acknowledgment, claiming that it, and not

STN, is the true representative of the Schaghticoke

tribal group. See 41 IBIA at 38. The Coggswell family

agrees that the Schaghticoke satisfy the criteria for

federal acknowledgment but does not recognize STN’s

current leadership as legitimate

The PF determined that, for the period after 1996,

STN satisfied neither criterion (b) or (c) because the

STN’s membership excluded a large number of indi-

viduals representing important family lines or sub-

lines from the group’s history, including members of

the SIT group and members of the Coggswell family.

(See Intervenors’ Ex. A, PF at 20, 30, 212-13.)

Following the PF, STN attempted to obtain the

membership of several of these other individuals,

though some of those individuals did not consent to

membership. Accordingly, the FD concluded that key

Schaghticoke individuals, such as former council

leadership, in the community and political system as

it existed b

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