Friday, May 28, 2010

Schaghticoke Tribe Asks U.S. Supreme Court To Hear Case

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This installment of The Tribes In The Media is an Indian Country Today article on the Schaghticoke Tribe's petition for the U.S. Supreme Court to hear their case on the denial of their federal recognition.

The Schaghticoke Tribe is one of five Indian tribes recognized by the state of Connecticut.

Schaghticoke files cert on acknowledgment reversal
By Gale Courey Toensing
Indian Country Today
May 26, 2010

WASHINGTON – The Schaghticoke Tribal Nation has petitioned the U.S. Supreme Court to review whether a lower court should have considered the appearance of undue political influence as well as its actual effect on Interior Department officials, who rescinded the nation’s federal acknowledgment.

The 220-page petition for a writ of certiorari was filed May 24. It presents a single question to the high court: “Whether certiorari should be granted to resolve a conflict among the Courts of Appeals on this question: When reviewing a petition’s due process claim that undue political pressure has actually affected or influenced a federal administrative adjudicative decision, must a federal court also consider the petitioner’s claim that due process was violated by the appearance of bias or impropriety arising from the political pressure?”

The petition is the last judicial stop on the Schaghticoke’s long quest for federal acknowledgment – a journey that began in 1981 with a letter of intent to seek federal status with the BIA.

The nation was federally acknowledged in a Final Determination on Jan. 29, 2004, but within minutes of the BIA announcement Connecticut politicians led by Attorney General Richard Blumenthal vowed to do everything in their power to overturn the decision.

They kept their promise.

Over the next year and a half, Blumenthal, Sens. Chris Dodd and Joe Lieberman, former U.S. Reps. Nancy Johnson, Chris Shays and Rob Simmons, Connecticut Gov. Jodi Rell, state and local officials and the White House-connected lobbying firm of Barbour, Griffith and Rogers – hired by residents of Kent, Conn., where the nation has a 400-acre reservation – lobbied former Interior Secretary Gale Norton, the White House, then-Attorney General Alberto Gonzales, the Interior Board of Indian Appeals, and even a federal district court judge to overturn the nation’s federal acknowledgment.

In October 2005, the BIA issued a Reconsidered Final Determination reversing the Schaghticoke’s acknowledgment.

The nation appealed the BIA reversal to a federal district court, where Judge Peter Dorsey acknowledged the unprecedented political influence exerted on federal decision makers. But, ultimately, Dorsey threw out the case because, among other things, he believed federal officials who said they weren’t influenced by the enormous political pressure that they acknowledged was brought to bear upon them.

A panel of the 2nd Circuit Court of Appeals agreed with the district court and denied the nation an en banc hearing.

Schaghticoke attorney Richard Emanuel said the case has far-reaching implications.

“The petitioner’s principal contention is that in the context of a federal administrative adjudicative decision, a litigant’s due process right to a fair hearing may be violated by the ‘appearance of bias’ or impropriety. It is an issue that can affect any litigant in any adjudicative proceeding before any federal agency,” Emanuel wrote.

He said circuit courts are split on the issue.

The Supreme Court will need to decide if there is, indeed, a clear split and whether it’s important enough for them to take it up, said Matthew L.M. Fletcher, director of the Indigenous Law Center at Michigan State University. If it does, the court will probably decide whether the federal acknowledgment process is quasi-judicial or quasi-legislative, Fletcher said.

“It’s definitely more the former. So the real question is whether there is a circuit split. The 2nd Circuit apparently has adopted a rule that a petitioner like STN (the Schaghticoke) has to show ‘actual’ prejudice or bias in a political influence case involving a federal agency – as in, members of Congress or others with power actually influenced an agency decision. STN is arguing that in some instances a petitioner should only have to show ‘apparent’ prejudice or bias. As we all know, there is plenty of apparent political influence in this case, but STN was unable to prove actual political influence to the court,” Fletcher said.

During the STN appeal, Orangetown v. Ruckelshaus was cited, a case that dealt with political claims arising from a non-adjudicative federal agency issue – disbursing grant money.

“In short, Orangetown represents a ‘one size fits all’ standard that fails to take into consideration the inherent qualitative differences between quasi-judicial (adjudicative) proceedings and quasi-legislative (rule-making) proceedings. Such a distinction has been either expressly or implicitly recognized by every other circuit that has considered a political influence claim,” including the 1st, 3rd, 5th, 7th, 9th and 11th circuits and the District of Columbia Circuit Court, Emanuel said.

The 2nd Circuit was unwilling to hold that a federal recognition decision is a judicial/adversarial-style decision, even though “it definitely feels that way to STN, and the politics of federal recognition makes it look like it, but it shouldn’t be. So the court of appeals fudged the question, and just made it easy for themselves by adopting an impossible standard (actual prejudice),” Fletcher said.

The case is further complicated by the fact that federal recognition decisions are tinged with what is known as the political question doctrine – an issue that federal courts refuse to decide because they say it properly belongs to the decision-making authority of elected officials.

“Political questions like these often scare away federal courts,” Fletcher said.

While it’s impossible to predict how the Supreme Court will respond, “the statistics aren’t helpful to STN,” Fletcher said.

In “Factbound and Splitless: The Certiorari Process as Barrier to Justice for Indian Tribes,” Fletcher examines 163 preliminary memoranda between 1986 and 1993 that show “there’s a near zero chance” the Supreme Court will take up a case filed by tribal interests.

“What is clear is that the Supreme Court simply will not accept a case for review when the tribal petitioner is asking for justice, or alleges that tribal sovereignty or Indian rights are being violated, even horrendously. It’s awful but true. So STN is being very smart here in arguing that a circuit split has arisen, rather than squarely argue the merits of their federal recognition petition,” Fletcher said.

STN Chief Richard Velky said he hopes the Supreme Court will take up the case and rule in the tribe’s favor.

“I’m hoping the Supreme Court will be a bit tougher than the 2nd Circuit in addressing what’s in front of them.”