Honorable John Leshy
Solicitor Department of Interior
United States Department of Interior
1849 C Street, NW
Washington, D.C. 20240

Dear Solicitor Leshy:

Recent extraordinary events compel me to write to you personally to seek your review and consideration of my request that Kevin Gover, Assistant Secretary-Indian Affairs, immediately recuse himself completely from any consideration of the Eastern Pequot, Paucatuck Eastern Pequot and the Schaghticoke Tribes’ petitions for federal acknowledgment. Equally important, I urge that the incurable taint of his past participation in the Eastern/Paucatuck petitions requires that the proposed findings in those petitions be withdrawn and assigned to an impartial decision-maker. A copy of my July 14, 2000 letter to Assistant Secretary Gover is attached. This action is imperative to prevent an obvious conflict of interest and improper command influence in the decision-making process based on Mr. Gover’s prior representation of the Golden Hill Paugussetts, and to assure that your prior opinion involving a similar request is consistently and fairly applied.

As you know, based on your advice, Mr. Gover recused himself from any involvement in the Golden Hill Paugussett Tribe’s petition as a result of a direct conflict of interest resulting from his prior legal representation of that group. Mr. Gover’s deputy, Michael Anderson, was designated as the decision-maker in the Golden Hill Paugussett matter. In an April 1, 1999 opinion involving the Yuchi petition, you correctly determined that Mr. Gover’s recusal from the Golden Hill petition alone was not sufficient to eliminate the effects of his conflict of interest, and that Mr. Gover “ought not to take action that could directly influence the Golden Hill decision.” There, you determined that because the Yuchi and Golden Hill petitions presented a common issue requiring the interpretation of the acknowledgment regulations, Mr. Gover should delay his decision in the Yuchi matter until Mr. Anderson renders his decision in Golden Hill. In particular, you explained:

Because a question regarding the “burden of proof” is raised in both Golden Hill and Yuchi, there is a concern that if the regulations are interpreted in Yuchi by Mr. Gover in a certain way, it could directly influence Mr. Anderson’s decision in Golden Hill. As a result, we have advised Assistant Secretary Gover that he ought not make any decision in Yuchi until Mr. Anderson renders his decision in Golden Hill, in order to avoid even the appearance of any possible command influence. Mr. Gover has agreed.

(Emphasis supplied.)

Your analysis of the ethical considerations in the Yuchi matter is directly applicable here, requiring Mr. Gover’s recusal. As in the Yuchi petition, the Eastern/Paucatuck petitions involve issues decided or to be decided by Mr. Gover which require the interpretation of several of the mandatory criteria that could directly influence Mr. Anderson’s decision in Golden Hill. These considerations are compounded by Mr. Gover’s new interpretation of the effect of state recognition on the federal criteria, an issue that includes questions unique to Connecticut law and history, in a manner that is contrary to BIA precedent and regulations and may benefit his former client, the Golden Hill Paugussetts, significantly.

I am particularly troubled by recent reports that have confirmed that Mr. Gover took the unprecedented step of rejecting the recommendations of his research staff that the Eastern/Paucatuck petitions failed to meet two of the mandatory criteria, namely that the tribes were distinct communities and that they exercised political influence or authority over their members from historical times until the present. In a written memorandum, according to these reports, he expressly directed his staff to alter their negative findings on these criteria and to “fill the [evidentiary] gaps” by giving significant and unprecedented weight to the fact of “state recognition.” This report is supported by the BIA’s own charts, which show that the BAR staff expressly determined that both petitioners failed to establish these two mandatory criteria. In accordance with the Assistant Secretary’s directive, the proposed findings in the Eastern/Paucatuck petitions give apparent dispositive weight to state recognition of the Paucatuck Eastern Pequots and the existence of a state reservation to establish mandatory criteria (b) and (c), where other evidence on these criteria was either sparse or nonexistent, and where the BAR researchers had concluded that the criteria had not been met. This interpretation of the mandatory criteria is not only unprecedented, it is directly contrary to the interpretation of this issue by former Assistant Secretary Ada Deer, Mr. Gover’s immediate predecessor, in her original denial of the Golden Hill petition. Former Assistant Secretary Deer expressly determined in the Golden Hill petition that state recognition cannot be regarded as dispositive in Federal acknowledgment cases because “[r]equirements for recognition of Indian tribes established by individual states at any given time vary widely and are not binding upon the Federal government.” See Golden Hill technical report, 1996, p. 97. Mr. Gover’s use of state recognition to support criteria (b) and (c) also runs counter to agency regulations, which provide that such evidence may be used to establish criterion (a) relating to identification as an Indian entity, but does not provide for its use to support the other criteria. See 25 CFR § 83.7 (a).

Thus, the issue of state recognition is a critical and common issue to both the Golden Hill Paugussett and Eastern/Paucatuck petitions. Mr. Gover’s reversal on this issue may directly benefit his former client and therefore creates the appearance of a result-oriented determination intended to affect the outcome of the decision in Golden Hill, and could “influence Mr. Anderson’s decision in Golden Hill.” Under your analysis in Yuchi, therefore, recusal is necessary and appropriate here to avoid any actual or apparent conflict of interest or command influence in the decision-making process.

I have not yet received a response to my July 14, 2000 request for recusal and the withdrawal of the proposed findings in the Eastern/Paucatuck petitions. However, I recently learned that Edwin B. Cohen, the Deputy Solicitor, denied a similar request for recusal made by the Connecticut Towns of Ledyard, North Stonington and Preston. With all due respect, the Deputy Solicitor’s analysis is seriously flawed and contrary to your determination in the Yuchi matter. I therefore urge you to review and consider this matter personally.

The Deputy Solicitor’s attempt to distinguish the Yuchi petition from the Eastern/Paucatuck Pequot petitions is unconvincing and, in my view, misapplies the clear intent and spirit of your decision in the Yuchi matter. In Yuchi, you found that as a result of Mr. Gover’s recusal in Golden Hill, he “ought not to take action that could directly influence the Golden Hill decision.” Of primary concern to you in the Yuchi matter was the fact that “if the regulations are interpreted in Yuchi by Mr. Gover in a certain way, it could directly influence Mr. Anderson’s decision in Golden Hill.” This risk is real and present. Mr. Gover’s recusal cannot be avoided in this matter simply by characterizing the issue of state recognition as a “policy” issue. The relevance of state recognition to federal acknowledgment decisions under the mandatory criteria is clearly a matter of interpreting the regulations. Mr. Gover’s predecessor, Ada Deer, expressly determined in her decision denying the Golden Hill petition that state recognition was not dispositive. Mr. Gover’s reversal on this issue in the Eastern/Paucatuck proposed finding necessarily involved a contrary interpretation of the regulations and the establishment of new precedent on the issue that could directly benefit his former client, the Golden Hill Paugussett tribe.

In any event, the question as to whether the issue of state recognition is one of interpretation or policy makes no difference whatsoever. Given the enormous stakes and implications of federal recognition and the unique and critical nature of the issue of state recognition to these Connecticut petitions, it cannot be disputed that Mr. Gover’s reversal on this issue could directly benefit his former client by “directly influencing” Mr. Anderson in the Golden Hill matter, and creates a clear conflict of interest.

Additionally, the Deputy Solicitor states that recusal here would somehow “preclude the Assistant Secretary from discharging the responsibilities he has sworn to uphold as Assistant Secretary,” thereby implying that recusal is inappropriate in this case because it would have broad implications on other pending petitions. I must disagree that recusal here would have such broad application as the Deputy Solicitor suggests. The issues presented in these petitions relevant to the issue of state recognition of these groups are unique to Connecticut’s law and history and common and critical to all of these petitions. Issues such as origin and duration of state recognition, the state’s process and standards for granting that recognition, and the legal implications of state recognition, cited by the Deputy Solicitor as “relevant facts,” are likely similar as to all of these Connecticut petitions and therefore, the BIA’s reliance on state recognition and these “relevant facts” in the Eastern/Paucatuck petition could impact the decision in Golden Hill.

Even if Mr. Gover’s recusal from these petitions would have broad implications with respect to other petitions outside of Connecticut, this fact would not justify denying my recusal request. In Yuchi, the common issue that created the potential for the appearance of command influence requiring deferment of that decision involved a threshold legal issue that, according to Deputy Solicitor Cohen, “all acknowledgment petitions must meet.” Moreover, and importantly, recusal decisions should not be determined by the number of petitions that will be affected by any given recusal decision, but rather by the need to avoid a conflict of interest and the appearance of impropriety, guided by principles of due process and fundamental fairness.

The decision to federally recognize an Indian tribe has huge, far reaching ramifications for states, local communities and Indian tribes. As you previously recognized in the Yuchi matter, it is incumbent on public officials to avoid even the appearance of a conflict of interest or any possible command influence in their decision-making. The integrity of the process and the public’s confidence in the results of those decisions demand no less.

Recent threats by the Golden Hill Paugussetts to sue innocent homeowners, and place liens on the titles to 700,000 acres of land, raise the specter of rapidly intensifying scrutiny and and antagonism on a number of levels. All the more reason to be sensitive to the need for fairness, objectivity, and integrity, and the public’s perception of those qualities in the process. In addition, as you know, the Schaghticoke Tribe has strongly urged that the merits of the Golden Hill Paugussett petition are inextricably intertwined with their own, and should be considered together if at all, so that Native American interests are vitally at stake.

Accordingly, I respectfully request that you review and grant my July 14, 2000 request that Assistant Secretary Gover recuse himself completely from any further involvement in the Eastern/Paucatuck petitions, and because the Schaghticoke petition involves similar issues relating to Connecticut law and history, from any involvement in that petition as well. Because a proposed finding has already been issued in the Eastern/Paucatuck petitions by Mr. Gover and the taint of this conflict cannot be cured, I also request that these proposed findings be withdrawn and the petitions considered by an independent decision-maker who is not under the control of, and does not report to, the Assistant Secretary.

I appreciate your consideration of this important request.

Very truly yours,

Richard Blumenthal

Enclosures