Making the Case …

Barbour Griffith & Rogers and the Art of Tribal Recognition

Posted November 13, 2007 at 6:24pm

A federal lawsuit by a Connecticut Indian tribe is casting light on the fine line lobby firms sometimes walk in balancing the interests of their various clients, particularly when the interests of those clients turn out to be diametrically opposed.

Take the case of the lobby shop Barbour Griffith & Rogers and its successful efforts to help reverse federal recognition of the Schaghticoke Indian tribe.

In November 2001, BGR went to work for Donald Trump to help the Paucatuck Eastern Pequot tribe in

Connecticut win recognition from the federal government.

The campaign succeeded, and the tribe was recognized.

Three years later, Barbour Griffith & Rogers went to work for a Connecticut town trying to prevent a different group of Connecticut Indians, the Schaghticoke, from being recognized.

That campaign succeeded as well, and the Department of the Interior issued rulings that simultaneously reversed federal recognition for the Schaghticoke and also overturned the recognition of the lobbying firm’s previous client.

A central factor in both cases was whether the Department of the Interior should consider in its decision the state’s long-standing recognition of the tribes, even if there was little or no documentary evidence of organized tribal activity for certain time periods.

In the first case, BGR’s clients argued yes, and won. In the second case, BGR’s clients argued no, and won again.

There is no evidence that the second team of BGR lobbyists — a different group than had represented the first client — directly contradicted the arguments the firm had advanced three years earlier.

The firm’s general counsel argues that BGR was under no contractual obligation to the first client when it began representing the second, and that BGR’s representation of the two clients was not in conflict.

“There were over two years in between the completion of one representation and the beginning of the other, both of which were publicly disclosed,” said BGR Counsel Elliot Berke. The lobbying firm “maintains the strictest ethical standards when representing its clients and strives to ensure there are no conflicts between them,” he said.

“Although they were two distinct clients with two different sets of circumstances, BGR’s position in both cases was to make sure the laws governing tribal recognition were followed,” Berke added.

Six years ago, BGR signed an agreement to work with Trump and the Paucatuck Eastern Pequot in support of the tribe’s petition to be recognized by the federal government — the first step to allowing the tribe to build a casino on its land.

BGR would be paid $30,000 a month, and would be entitled to a $240,000 “success bonus” upon issuance by the Secretary of the Interior of “a positive final determination” on the tribe’s acknowledgement petition, according to documents reviewed by Roll Call.

Under DOI regulations, in order to win federal recognition, tribes must show continuity in their communities, including a continuous history of tribal governance, from first contact with European settlers to the present.

BGR’s lobbying team for the Paucatuck included Diane Allbaugh, wife of Joe Allbaugh, who had been the campaign manager for the Bush/Cheney campaign in 2000. The Village Voice in 2004 quoted a former Interior Department official as saying that at the behest of his politically appointed boss, he had met with Diane Allbaugh about the Paucatuck case.

In July 2002, the department recognized the tribe, indicating that while there were gaps in the tribe’s historical record, the fact that the state had continuously recognized the tribe made up for any weaknesses in the tribe’s documentation.

BGR filed documents with the Senate terminating its lobbying relationship with the tribe effective July 31, 2002.

The agreement between BGR and the Paucatuck included a conflict-of-interest clause, which stated that for the term of the lobbying contract plus an additional two years — apparently until July 31, 2004 — BGR “shall not accept or enter into any relationship that may have the effect of impeding or delaying the Tribe’s federal recognition efforts.”

In September 2004, BGR was contacted by representatives of Town Action to Save Kent, a Connecticut town that was attempting to overturn Interior’s decision to recognize the Schaghticoke Tribal Nation.

In a lawsuit filed by the Schaghticoke, BGR Chief Operating Officer Loren Monroe provided a deposition stating that the firm began researching Kent’s case in September and filed papers to lobby on the town’s behalf in December 2004.

Like the Paucatuck, the dispute in the Schaghticoke case partly revolved around the Bureau of Indian Affairs’ use of state recognition as a remedy for the weaknesses in the documentary evidence in proving continuity of the Schaghticoke tribe.

BGR was part of a lobbying effort led by members of the Connecticut Congressional delegation to overturn the Schaghticoke recognition. The theme of the campaign was that the recognition process was broken and BIA was violating its own regulations.

Members of the Connecticut delegation highlighted BIA documents that admitted that the heavy reliance on state recognition as a factor in federal recognition was unprecedented and required a liberal interpretation of the rules for federal acknowledgement of a tribe.

While BGR did not directly attack the issue of state recognition, the firm drafted a letter for the Connecticut governor’s signature that accused the Interior Department of violating its own rules in recognizing the Schaghticoke tribe, with “artificial devices constructed to allow the [tribe] to bridge the gaps in their evidence.”

On May 12, 2005, Interior’s appeals board remanded for reconsideration DOI’s decisions to recognize the two tribes.

For the Paucatuck, “the State of Connecticut’s ‘implicit’ recognition of the Eastern Pequot as a distinct political body … is not reliable or probative evidence for demonstrating the actual existence of community or political influence or authority within that group,” the appeals board ruled.

Since the BIA “used state recognition in the same way” in the Schaghticoke decision, that decision also was remanded.

Five months later, again on the same day, Interior issued new final determinations in both cases, rejecting the applications of both tribes for federal recognition. BGR’s new client, the town of Kent, had won; it’s prior client, the Paucatuck, had lost.

Brett Kappel, an ethics lawyer at Vorys, Sater, Seymour and Pease, said lobbying firms like BGR operate under less stringent conflict-of-interest rules than law firms. “If you are not a lawyer, there is no rule against taking inconsistent positions on the same legal issue,” Kappel said.

BGR would only be bound by whatever terms it had negotiated in the contract with the Paucatuck, Kappel said, which would generally include a confidentiality clause preventing the firm from using for the second client information it gathered or generated for the first client.

Since the “cooling-off” period prescribed in the contract appears to have elapsed — and neither the Paucatuck nor Trump has filed any kind of complaint against BGR — there would appear to be no obligation for the firm to decline the second contract.

Kappel said lawyers face stricter conflict-of-interest rules. For lobby-only firms, “there are no rules except the ones that the lobby firm and the clients agree to accept by contract.”

Paucatuck Chief James Cunha declined to comment for this story, and representatives of Trump’s casino operations did not return calls.

But in September, lawyers for the Schaghticoke tribe filed hundreds of pages of evidence that they said demonstrated that the Department of the Interior’s decision to overturn the tribe’s federal recognition was the product of undue political influence by lawmakers and lobbyists.

The department, in a reply filed Nov. 8, said the record offered no evidence of undue influence, that the final ruling was appropriately decided, and that the court should dismiss the entire case.