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Native American Civil Rights: The Connecticut Schaghticoke Tribal Nation
Native American Civil Rights Litigation
I. Introduction: How a Suburban Connecticut White Boy Met a Real Life Indian Tribe for the First Time in Connecticut - of All Places
Like any other suburban kid growing up in 1950's suburban America, I spent my share of time watching “Western” movies with their stereotypical depiction of Native Americans as blood thirsty nomads living off the land in the American West.
The media’s portrayal softened and then radicalized over the ensuing decades, the white man taking his rightful turn in modern depictions as genocidal demon. Thanks to a generation of hard-working modern historians, the public idea of Native American Tribes began to be truly revealed as a fully formed culture closely connected to the natural world living in virtual communities so evolved as to serve as a model for this country’s founding fathers when designing our unique system of self-government.
My real life experience with Native Americans began in law school where I participated in the Native American Civil Rights movement that began in Maine with the litigation of Tribal land-right claims that set the stage for the establishment of Connecticut casinos several years later.
My next experience with Native Americans came about years later, when, in the mid-1990's, I was invited to join the Board of the American Indian Institute in Litchfield, Connecticut (this case came about as a result of my involvement in the Probate / Conservatorship litigation against the State’s largest law firm and Bank described elsewhere in this website).
The Tribe’s legal journey to obtain its rightful claim to federal recognition was a hard fought and fascinating journey. One of only four Tribes with State recognized reservations, the Schaghticoke’s had a historical pedigree that was recognized by all knowledgeable experts as the most authentic among Connecticut’s Tribes.
II. The Path to Recognition
When first approached by the Tribe to assist in their lengthy effort to obtain Federal Recognition as an Indian Tribe, their cause appeared a worthy one - a documented Indian Tribe within the colony of Connecticut since the seventeenth century, the Tribe had been in continuous existence since that time as a distinct, legally recognized, and owned and governed tribal reservation located in Kent, Connecticut.
Subsequently both myself, and my legal partner throughout this process, Attorney David Jaffe, undertook a close examination of the Tribe’s claim. What we saw was not pretty as the obstacles confronting the Tribe in their quest for federal recognition became clearly quickly apparent.
From a lawyer’s perspective the first obstacle to be considered was the political one: what was the position of the federal government?
The answer here was not encouraging - the path to recognition required the benevolent good wishes of the Bureau of Indian Affairs. Unfortunately, as we were quick to learn, the BIA smiled down on virtually no new applicants knocking on the door of federal acknowledgment. Of the hundreds of tribe’s applying for federal recognition each year, the BIA reviewed on average one to three petitions each year, recognizing virtually no new tribal petitions even in this limited pool.
A deeper and more significant obstacle become gradually apparent: local prejudice in a form so pronounced in its unabashed published declarations of anti-tribal sentiment by seemingly respectable citizens that it can only be described in one word: bigotry.
Aside from the local landowners and politicians fearful of diminished property values and loss of elected position, there existed an incredible, fully documented history extending into the late twentieth century of outright theft by official authorities (beginning with Connecticut colonial officials) of Native American property. Specific examples are legion and extend to the mid-twentieth century where Reservation family homes were destroyed by the Town of Kent as a fire prevention training drill by the local fire department.
As if this were not enough, the two “brother” Connecticut Tribes - the Mohegan and Pequots - now in possession of the two largest casinos in the Western Hemisphere - turned their enormous resources against the Schaghticoke recognition efforts.
The financial and political power of these Tribes - accumulated in a meteoric rise of less than ten years - was hard to comprehend given a precedent period of poverty and social marginalization of several hundred years. Stated simply, we were soon to gradually understand that these two Tribes were in control of the entire federal congregational delegation with influence reaching to the White House, along with the State political hierarchy.
Two simple illustrative examples among dozens: President William Clinton was widely known to have committed the personal telephone numbers of the Tribe’s leadership to heart; similarly, the first row of the Governor’s inauguration ball for every election cycle since recognition was purchased almost entirely by Tribal representatives.
The peak of tribal influence took the form of one overpowering fact illustrative of their untouchable influence: their every interest was vigorously advocated by the best legal representation to be had; namely, the State Attorney General, Richard Blumenthal. His office and his entire law firm of over 200 Assistant Attorney Generals were made to service the interest of these two Tribes who enjoyed the benefit of his comprehensive campaign effort to destroy the recognition efforts of the Schaghticoke Tribe. While publicly decrying the evils of expanded state gambling as justification of his rabid opposition to the Tribe’s recognition efforts, he stood by idly while the two existing Tribal gamily facilities underwent billion dollar expansions effectively adding two new State casinos.
The next phase of the Tribe’s journey was the most remarkable - despite every possible obstacle and all reasonable probability they achieved the seemingly impossible goal of obtaining federal recognition in less than 24 months. In doing so we crafted a legal strategy that became a model for Tribe’s seeking recognition around the country.
From the outset, both myself and my legal partner David Jaffe, saw the solution to the Tribe’s goal of achieving federal recognition as a legal one. For a civil rights lawyer the issue of procedural due process is fundamental; in the Tribe’s case this translated into a simple basic argument: the inability of the Tribe to obtain a fair hearing on their claim of legitimacy as a historic Native American Tribe within a reasonable time amounted to an outright denial of their claim to due process of law by effectively denying any hearing of their claim through the tactic of delaying consideration of their petition for decades.
Armed with this argument we filed suit in the Federal District Court claiming that the BIA’s failure to provide a timely hearing violated our Constitutional right to due process of law. The Court ultimately ordered the BIA to grant to our claim for a timely hearing and ordered a recognition decision to be made no later than 18 months; moreover, a computer database was put in place making publicly available an efficient transparent record of the Tribe’s genealogy and historical records (ultimately the use of this process, known by its acronym as the FAIR database for Indian Acknowledgment Resource petitions, became a model for the country).
Most importantly Attorney General Blumenthal signed on agreeing that the process was a model for Indian Country and swore his allegiance to the ultimate outcome.
Ultimately, this public position was shown to be little more than a cynical lie.
III. Recognition Achieved
Following the court ordered consent decree requiring the BIA to make its decision on the Tribe’s petition for Federal Acknowledgment within a specific and reasonable time, the Tribe invested enormous effort preparing it’s petition papers, drawing upon the efforts of a nationally recognized team of genealogists and other experts.
The net result was a petition which the then head of the Federal Bureau of Acknowledgment called the finest the Bureau had ever seen.
The eighteen month court-ordered consideration period passed with little attention by the media or by the State political delegation and the two existing federally recognized Connecticut Tribes.
As a result, the entire process proceeded under the radar screen thereby avoiding obstruction by the Tribe’s powerful adversaries and related outside influences. Because of this, the incredible occurred: a just and fair result granting the Tribe’s long fought and righteous claim to recognition.
IV. Ripping Recognition Away
In October of 2004, the BIA issued its decision approving the Tribe’s effort of over thirty years to granting recognition
The Tribe’s incredible feeling of joy was widely publicized and shared by the public in media coverage throughout the State.
Unfortunately the Tribe’s triumph was short-lived.
The State’s entire political establishment, made fat by years of political contributions by the two federally-recognized Tribes, initiated a firestorm of protest led by State Attorney General Richard Blumenthal. (The complicated and sophisticated process by which enormous political contributions are legally channeled to State politicians and their proxies by the Tribe’s and individual members would require a book-length narrative to fully describe).
Incredibly, immediately after public issuance of the decision, Attorney General Blumenthal held a press conference denouncing the decision as a fraud. In a reckless demonstration of irresponsible conduct by a public official, Blumenthal launched a tirade of accusations of misconduct by the Tribe and its supporters. More incredibly, his initial press conference denouncing the Tribe was conducted the same day of the decision without any time spent evaluating the decision. All of this followed hard on the heels of his previous promise to abide by any decision by the BIA in accordance with a process he concluded to be fair and a “model” for the entire country. [It should be noted that a formal investigation conducted by the Inspector General at Blumenthal’s urging into possible misconduct b the Tribe resulted in a finding of no wrongdoing - not surprisingly this fact was not mentioned a single time in the innumerable press releases issued by Blumenthal’s office].
Over the next two years a politically sophisticated campaign to overturn the Tribe’s decision was pursued by a wealthy group of landowners in Kent Connecticut who, in the form of the formally registered lobbying group named TASK previously discussed, dedicated an enormous sum of money lobbying the BIA to overturn the Tribe’s decision. This campaign was public and notorious in its efforts and made no secret of enlisting Washington’s most powerful lobbying group, Barbour, Griffin and Rogers, (BG&R). The BG&R firm worked in turn with the State federal delegation, in particular with then Congresswoman Nancy Johnson, along with the Governor’s office, to lobby the BIA and the Congressional subcommittees on Indian Affairs to “encircle” the Federal Government decision makers (as set forth in emails made part of the Court record) to reverse the Tribe’s decision.
These efforts extended to the highest levels of the Bush White House, involving the President’s highest advisers who sent a clear message to the BIA: overturn this decision.
What happened next was nothing less than extraordinary - an event that stands as clear and undeniable evidence of the corrupt influence of politics and money in the Tribe’s long effort to gain their rightful federal acknowledgment.
Approximately two years after recognition, in a decision unprecedented in the BIA’s history, the Tribe’s recognition decision was reversed.
As a result they become a significant footnote in Native American history: the first Tribe in the history of the BIA to have a recognition decision reversed.
The Tribe’s subsequent effort to seek justice in the Federal District Court by way of an immediate appeal met a stone wall in the form of a `stiff arm’ by a hostile federal judge then on senior status with life long tenure under Article III of the Constitution who, unlike the rest of us working civilians, had no fear of being fired.
As equally incredible as the BIA’s reversal, the Federal Court saw no basis to the Tribe’s claims of political influence.
Despite two years of litigation efforts, with the assistance of a nationally recognized law firm assisted by two State law firms with stellar reputations, the Federal Court refused the Tribe any hearing whatever in which to present evidence; more distressing, not once in the course of multiple motions did the Court allow a single opportunity to present oral argument in open court.
Although limited discovery was provided, once the Tribe’s efforts reached the highest levels of the Bush government involving Presidential advisers such as Karl Rove, Dorsey shut down any further discovery efforts in the form of terse orders, never once including a written memorandum of decision explaining his reasoning of any length or consequence (this and related matters are described more fully in the Tribe’s Appellate Brief which is linked to this website).
In October 2006, in a widely anticipated decision, the Court dismissed the Tribe’s case without hearing; the opinion issued in accordance with this decision failed to address in any consequential way the most important issues raised by the Tribe.
It was as if a lighting bolt had been thrown from a Greek God, seemingly issued without need of real justification or explanation despite the thousands of hours of legal effort by a Tribe who had invested all their prayers and worldly resources in their long and ultimately futile effort to find justice as Native American citizens.
V. The Comeback Trail
Over the course of the Tribe’s subsequent appeal from the BIA’s reversal of recognition, they were able to conduct limited discovery which revealed the amazingly corrupt and cynical process which led to the unprecedented reversal of their acknowledgment decision.
Without getting into the complicated facts of this process, I will briefly describe only two of the dozens of illustrative documented examples of the corrupt conduct which denied their rightful heritage.
First, the legal standard: any involvement in a federally administrative process, even the writing of a letter by a Congressman as occurred in an Environmental Protection Agency case involving the Alaskan pipeline appealed to the United States Supreme Court is grounds for reversal. In that decision, as well as many similar ones to follow, the United States Supreme Court has made clear that any conduct by a public official that even gives the appearance of impropriety by a federal agency is grounds for reversal.
Second, as one single illustrative example of political undue influence among dozens which occurred in the Tribe’s case, the entire Connecticut Federal Delegation met with then Interior Secretary Gail Norton and threatened to have her fired if she did not overturn the Tribe’s decision (this is a matter of record as set forth in the sworn deposition of Gail Norton conducted by the Tribe’s legal team which is now an exhibit in the Tribe’s pending Second Circuit appeal).
Numerous other examples are set forth in the Tribe’s pending appellate appeal.
In short, the Tribe’s litigation efforts on appeal revealed a sophisticated, well funded effort orchestrated by the most powerful Washington lobbying firm in the country. This effort was conducted with the assistance of the Governor whose efforts extended, incredibly, to ex parte written correspondence with the Federal Court during the course of the Tribe’s appeal (the letters between the Governor and Federal Judge Dorsey are a matter of record in the Tribe’s appeal).
Immediately following Judge Dorsey’s decision, the Tribe filed an appeal in the Second Circuit Court of Appeals; seated in New York City, this Court is the most-respected Appellate Court in the Country, second only in prestige and influence to the United States Supreme Court. To assist us in our appeal we enlisted Connecticut’s leading appellate lawyer, Attorney Richard Emanuel, to spearhead our appellate effort. Also, instrumental in crafting the appeal was Attorney Hunter Tzovarras of our office, a young lawyer with a brilliant future.
The brief in this appeal has been recently filed. In spite of the limited page restriction on the size of appellate briefs, the Tribe’s enormously lengthy and compelling story has been successfully condensed - it reads like a Hollywood script. I encourage everyone to click on and read through it.
This appeal is now pending decision. We can only pray that justice will finally prevail and award this Tribe’s long journey with reinstatement of its rightfully issued acknowledgment decision.
We have every confidence that the Tribe’s long, historical journey will result in the just conclusion it richly deserves.