Second Circuit Briefs in Schaghticoke Appeal

Here are the briefs in Schaghticoke Tribal Nation v. Kent School Corp. Inc.:

Schaghticoke Brief

Connecticut Brief

Kent School Corp et al Brief

US Brief

Schaghticoke Reply

Lower court materials here.

Schaghticoke Tribal Nation Non-Intercourse Act Land Claims Dismissed

Here are the materials in United States v. 43.47 Acres of Land, More or Less, Situated in The County of Litchfield, Town of Kent (D. Conn.):

Town of Kent Motion

US Motion

STN Response

Town of Kent Reply

US Reply

Connecticut COA Affirms Eviction of Individual from Schagticoke Lands

Here is the opinion in Schaghticoke Indian Tribe v. Rost.

An excerpt:

The self-represented defendant in this summary process eviction action, Michael J. Rost, appeals from the trial court’s judgment of possession rendered in favor of the plaintiffs, the Schaghticoke Indian Tribe (SIT) and the Schaghticoke Tribal Nation (STN). The defendant claims that the court improperly (1) exercised jurisdiction by adjudicating a summary process action involving sovereign reservation land, (2) decided a dispute over tribal leadership, (3) rendered judgment without one of the plaintiffs being represented at the summary process trial and (4) ignored prior judicial decisions impacting STN’s authority to represent the interests of the Schaghticoke Indians. We affirm the judgment of the court.

ICT Article on Schaghticoke Federal Recognition Cert Petition

From ICT:

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the appearance of undue political influence as well as its actual effect on Interior Department officials, who rescinded the nation’s federal acknowledgment.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.
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Schaghticoke Recognition Appeal to be Heard in Second Circuit

From ICT:

NEW YORK – Almost five years to the date after the BIA issued a devastating reversal of the Schaghticoke Tribal Nation’s federal acknowledgment, the 2nd Circuit Court of Appeals will hear oral arguments in the nation’s ongoing quest to restore its federal status.

The hearing will take place Oct. 8. The STN case is the last on a list of eight other cases to be heard that day.

The BIA recognized STN in a Final Determination Jan. 29, 2004, then reversed its decision on Columbus Day, Oct. 12, 2005, in an unprecedented Reconsidered Final Determination, taking away the federal acknowledgment of both the Schaghticoke and Eastern Pequot Tribal Nation.

While the Eastern Pequots have not challenged the reversal, STN has fought it since January 2006 through an Administrative Procedures Appeal in the U.S. District Court in New Haven. The appeal names the Interior Department and its top officials during the Bush administration as defendants.

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Schaghticoke Nation Student Profiled

From Diverse: Issues in Higher Education:

Melissa Velky, a third-year law student at Michigan State University’s College of Law, is not waiting until graduation to immerse herself in a serious legal confrontation. With the livelihood of her native tribe at stake, Velky, daughter of Schaghticoke Nation Chief Richard Velky, is working now to help restore her tribe’s federal recognition.

Velky and nearly 300 others were members of the Schaghticoke Tribal Nation until their federal recognition was revoked in 2005. Velky, an indigenous law major, plans to launch an Internet-based campaign titled “Students for Justice” that will utilize social networks like Facebook and MySpace to garner support for her tribe.

“I am Schaghticoke, and I will always be,” says Velky, denouncing the notion that her identity and the history of her people can be revoked with the stroke of a pen.

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Schaghticoke Chief’s Daughter Takes Fight to Web

From the Connecticut Post:

WASHINGTON — As far as Melissa Velky is concerned, she is Native American, tried and true.

The 24-year-old daughter of Richard Velky, chief of the Schaghticoke Tribal Nation, Melissa spent many a childhood day on the tribe’s 300-acre state reservation in Kent, Conn. As convinced as she is of her heritage, the federal government has said otherwise — declining to grant the tribe federal recognition, she claims, after state elected officials intervened. It is an injustice in her eyes and something she hopes to convince young Americans to rally around. “When we got our recognition reversed it was like my future being stomped on by the government,” Velky said in a recent interview. Velky, who is in her third year at Michigan State University’s College of Law, plans soon to launch “Students for Justice,” an Internet-based campaign that will utilize social networks like Facebook and MySpace to spread the word. “I’ve been through it all,” she said. “I’m interested in all aspects of the recognition process and hope other people will get involved and see what I see.” Velky was not yet born in 1981 when the tribe sent a letter of intent to the Bureau of Indian Affairs that they planned to petition for recognition. After years of gathering historical, genealogical and other records, the tribe submitted its petition to BIA and was approved on Jan. 29, 2004. The decision, however, was reversed on Oct. 12, 2005, on appeal from the state.

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Schaghticoke Tribal Nation v. Kempthorne Cross-Motions for Summary Judgment

The parties in Schaghticoke Tribal Nation v. Kempthorne have filed cross-motions for summary judgment.

STN’s brief was filed in September: Schaghticoke Summary Judgment Brief

The United States brief is here: Federal Summary Judgment Brief

The State of Connecticut’s brief is here: Connecticut Intervenors Brief for Summary Judgment

Schaghticoke Tribal Nation v. Kempthorne Materials

Filed orders and opinions are available here in this ongoing case:

Here are the proposed finding documents dated December 5, 2002.

Here is the notice of proposed finding against the Nation dated December 11, 2002.

Here are the final determination documents dated January 29, 2004.

Here is the notice of final determination dated February 5, 2004 favoring federal recognition of STN.

Here is the appeal to to IBIA, dated May 12, 2005, reversing the decision.

Interlocutory opinions in the ongoing federal case in the US District Court in Connecticut are here:

June 14, 2006 opinion

June 26, 2006 opinion

October 3, 2006 Opinion

March 3, 2007 Opinion

A motion for summary judgment has been filed. Once we get that motion, we will upload it here.

The Schaghticoke Case: Federal Recognition and Politics

The federal recognition process is broke and the case of the petition of the Schaghticoke Tribal Nation in Connecticut is the perfect example.

Here are the proposed finding documents dated December 5, 2002.

Here is the notice of proposed finding against the Nation dated December 11, 2002.

Here are the final determination documents dated January 29, 2004.

Here is the notice of final determination dated February 5, 2004 favoring federal recognition of STN.

Here is the appeal to to IBIA, dated May 12, 2005, reversing the decision.

Here is an editorial in the (normally) hostile Hartford Courant decrying the blatant anti-Indian politics played by powerful figures that have corrupted the recognition process in this matter, and as reported in Indianz.com. From the editorial:

We know about all the press conferences, the showboat congressional hearings and the charges of corruption that dominated the Schaghticoke Tribal Nation’s long, unsuccessful fight for federal recognition.

Now, as the Schaghticokes, whose reservation is in Kent, make a final pitch to revive their case in federal court, it’s clear powerful forces were at work behind the scenes. Led by our congressional delegation, opponents went straight to the top in their effort to undo the tribe’s federal recognition.

Interlocutory opinions in the ongoing federal case in the US District Court in Connecticut are here:

June 14, 2006 opinion

June 26, 2006 opinion

Other opinions will be added as we find them.

My own work on federal recognition can be found here.