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Chinook Indian Nation v. Zinke

United States District Court, W.D. Washington, Tacoma

June 20, 2018

CHINOOK INDIAN NATION, et al., Plaintiffs,
v.
RYAN K. ZINKE, et al., Defendants.

          ORDER ON MOTION TO DISMISS

          Ronald B. Leighton United States District Judge

         THIS MATTER is before the Court on Defendants' Motion to Dismiss [Dkt. #32]. Plaintiffs are descendants of the historic Chinook Indian tribe and bring suit against the Department of the Interior (DOI) and the Bureau of Indian Affairs (BIA) in an effort to compel those agencies to add the Chinook Indian Nation (CIN) to the list of federally acknowledged tribes. Plaintiffs also challenge regulations promulgated by Defendants which prohibit the CIN from re-petitioning the federal government for tribal acknowledgment. Finally, Plaintiffs seek access to funds from a 1970 Indian Claims Commission judgment currently held in trust by the DOI for the Lower Band of Chinook and Clatsop Indians. Defendants move to dismiss all claims, arguing that the Court lacks subject matter jurisdiction to confer federal acknowledgment on the CIN. Defendants also argue that Plaintiffs lack standing to challenge the re-petition ban, and that the CIN's claims regarding the funds held in trust is not a final agency action which can be challenged under the Administrative Procedure Act (APA). The Court heard oral argument on May 8, 2018. For the reasons that follow, the Motion to Dismiss is GRANTED IN PART and DENIED IN PART.

         I. BACKGROUND

         A. Parties

         Plaintiff Chinook Indian Nation is a tribal group and nonprofit organization based in Bay Center, WA whose members primarily reside in Washington and Oregon. Dkt. 24 at 3-4. Members of the CIN trace their ancestry to “the historic Chinook Tribe, including the Lower Band of Chinook and Clatsop Tribe, that resided in the area of the lower Columbia River since time immemorial[.]” Id. at 4.[1] The historic Chinook Indians participated in treaty negotiations with the United States in the mid-1800s, however, the CIN is not on the list of federally acknowledged tribes maintained by the Secretary of the Interior. Dkt. 37 at 10. Plaintiff Anthony Johnson is the elected chairperson of the CIN. Dkt. 24 at 5.

         Collectively, Defendants are the federal agencies and officials who oversee the tribal acknowledgment process for the United States. Defendant Ryan Zinke is the Secretary of the Interior. Defendant John Tahsuda is the Acting Assistant Secretary for Indian Affairs. Defendant BIA is the agency within the DOI responsible for providing services to American Indians and Alaska Natives as well as protecting and improving the trust assets of American Indians and Indian tribes. Defendant Office of Federal Acknowledgment (OFA) is the office within the DOI that implements the federal regulations regarding federal acknowledgment of American Indian tribes.[2] See 25 C.F.R. § 83 et seq. The OFA is responsible for reviewing petitions for federal acknowledgment and making recommendations and proposed findings to the Assistant Secretary for Indian Affairs (AS-IA) on whether or not to acknowledge tribal existence, thereby establishing a government-to-government relationship between the tribe and the United States.

         B. The Federal Power to Recognize Indian Tribes

         “Federal acknowledgment or recognition of an Indian group's legal status as a tribe is a formal political act confirming the tribe's existence as a distinct political society, and institutionalizing the government-to-government relationship between the tribe and the federal government.” Cohen's Handbook of Federal Indian Law § 3.02[3] at 133-34 (2012 ed.). Federal acknowledgment “is a prerequisite to the protection, services, and benefits of the Federal Government available to” Indian tribes by virtue of their status as tribes. 25 C.F.R. § 83.2. Acknowledgment also means that the tribe is entitled to the immunities and privileges available to other federally acknowledged Indian tribes by virtue of their government-to-government relationship with the United States as well as the responsibilities, powers, limitations and obligations of such tribes. Id.

         “Historically, the federal government has determined that certain groups of Indians will be recognized as tribes or nations for various purposes. The power of Congress to establish and maintain such political relations with Indian tribes derives from the Constitution's Indian commerce clause.” Cohen's Handbook § 3.02[4] at 136; see also U.S. Const. art. I, § 8, cl. 3. The United States Supreme Court has repeatedly described Congress as “possess[ing] plenary power over Indian affairs, including the power to modify or eliminate tribal rights.” South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 343 (1998); see also United States v. Lara, 541 U.S. 193, 200 (2004) (“the Constitution grants Congress broad general powers to legislate in respect to Indian tribes, powers that we have consistently described as ‘plenary and exclusive.'”) (citations omitted).

         Congress has delegated general responsibility over matters pertaining to Indian tribes, including issues of tribal recognition, to the Executive branch. See 25 U.S.C. § 2 (“The Commissioner of Indian Affairs shall, under the direction of the Secretary of the Interior, and agreeably to such regulations as the President may prescribe, have the management of all Indian affairs and of all matters arising out of Indian relations.”); Cohen's Handbook § 3.02[4] at 136 (“Congress has long delegated authority to the executive branch to take actions consistent with federal recognition of tribes. This delegation was the source of executive branch authority to adopt an administrative process for federal recognition, which was done in 1978.”) (citing Mark D. Myers, Federal Recognition of Indian Tribes in the United States, 12 Stan. L. & Pol'y Rev. 217, 272-273 (2001)).

         Federal recognition of tribes prior to the 1970s occurred on an ad hoc basis. Kahawaiolaa v. Norton, 386 F.3d 1271, 1273 (9th Cir. 2004). In 1975, the congressionally-established American Indian Policy Review Commission “highlighted a number of inconsistencies in the Department of Interior tribal recognition process and special problems that existed with non-recognized tribes. As a result, in 1978, the Department of Interior exercised its delegated authority and promulgated regulations establishing a uniform procedure for ‘acknowledging' American Indian Tribes.” Id.; 25 C.F.R. § 83 et seq. Under these “Part 83” acknowledgment regulations, a petitioning group's application for recognition must meet seven mandatory criteria to achieve federal acknowledgment:

(a) the group has been identified from historical times to the present, on a substantially continuous basis, as Indian; (b) “a predominant portion of the petitioning group comprises a distinct community and has existed as a community from historical times until the present”; (c) the group “has maintained political influence or other authority over its members as an autonomous entity from historical times until the present”; (d) the group has a governing document; (e) the group has lists of members demonstrating their descent from a tribe that existed historically; (f) most of the members are not members of any other acknowledged Indian tribe; (g) the group's status as a tribe is not precluded by congressional legislation.

Kahawaiolaa, 386 F.3d at 1274 (citing 25 C.F.R. § 83.7 (1994)).[3] “Thus, through its broad delegation and acknowledgment regulations, the Department of Interior has assumed much of the responsibility for determining which tribes have met the requirements to be acknowledged as a tribe with a government-to-government relationship with the United States.” Id.

         1. In 1994, Congress passed legislation requiring the DOI to annually publish a list of federally recognized tribes.

         In 1994, Congress passed the “List Act” requiring the Secretary of the Interior to publish annually “a list of all Indian tribes which the Secretary recognizes to be eligible for the special programs and services provided by the United States to Indians because of their status as Indians.” Federally Recognized Indian Tribe List Act of 1994, Pub. L. No. 103-454, 108 Stat. 4791 (codified at 25 U.S.C. § 5131). Significant to the present lawsuit, Congress found: “Indian tribes presently may be recognized by Act of Congress; by the administrative procedures set forth in part 83 of the Code of Federal Regulations denominated ‘Procedures for Establishing that an American Indian Group Exists as an Indian Tribe;' or by a decision of a United States court.” Id. at § 103(3) (emphasis added). The legal significance of these Congressional findings is disputed by the parties in this suit.

         2. The DOI and the BIA revise the Part 83 tribal acknowledgment regulations through rulemaking in 2015.

         In 2015, the DOI and the BIA promulgated a Final Rule “revis[ing] regulations governing the process and criteria by which the secretary acknowledges an Indian tribe.” Federal Acknowledgment of American Indian Tribes, 80 Fed. Reg. 37, 862 (July 1, 2015) (codified at 25 C.F.R. pt. 83). In promulgating the 2015 amendments, the DOI and the BIA conceded “[f]or decades, the current process has been criticized as too slow (a petition can take decades to be decided), expensive, burdensome, inefficient, intrusive, less than transparent, and unpredictable.” Id. The 2015 revisions were intended to make the acknowledgment “process and criteria more transparent, promote consistent implementation, and increase timeliness and efficiency, while maintaining the integrity and substantive rigor of the process.” Id. The Proposed Rule would have provided a limited opportunity for tribes that had previously been denied federal recognition to re-petition for acknowledgment. Id. at 37, 875. The BIA received numerous comments for and against re-petitioning, and ultimately decided not to allow re-petitions in the Final Rule:

After reviewing the comments both in support of and in opposition to allowing for any opportunity for re-petitioning, limiting re-petitioning by providing for third party input, and other suggested approaches for re-petitioning, the Department has determined that allowing re-petitioning is not appropriate. The final rule promotes consistency, expressly providing that evidence or methodology that was sufficient to satisfy any particular criterion in a previous positive decision on that criterion will be sufficient to satisfy the criterion for a present petitioner. The Department has petitions pending that have never been reviewed. Allowing for re-petitioning by denied petitioners would be unfair to petitioners who have not yet had a review, and would hinder the goals of increasing efficiency and timeliness by imposing the additional workload associated with re-petitions on the Department, and OFA in particular. The Part 83 process is not currently an avenue for re-petitioning.

Id.

         In addition to the re-petition ban, the 2015 revisions also made several changes to the way the OFA considers evidence and evaluates a petition for acknowledgment. Central to this lawsuit, the parties dispute whether the CIN would be able to meet the seven mandatory criteria for federal acknowledgment under the 2015 revisions.

         C. The Chinook Indian Nation's Petition for Federal Acknowledgment

         Not long after the DOI first promulgated the Part 83 acknowledgment regulations in 1978, the CIN gave notice of their intent to pursue administrative acknowledgment. Dkt. 37 at 9- 10. The CIN submitted their initial documented petition for recognition to the BIA in 1981. Id.; Dkt. 32 at 8-9. The CIN revised and resubmitted their petition in 1987 after the BIA's Branch of Acknowledgment and Research identified several deficiencies with the petition. Dkt. 32 at 9. The BIA placed the CIN's petition for acknowledgment under active consideration in January 1994, formally beginning Plaintiffs' unpredictable pursuit of federal recognition. Id.

         1. The DOI issues a Final Determination for Acknowledgment of the CIN in 2001.

         In 1997, AS-IA Ada Deer concluded that the CIN failed to meet three of the seven mandatory criteria under the Part 83 regulations, and issued a Proposed Finding Against Federal Acknowledgment of the Chinook Indian Tribe. Dkt. 33-1. Specifically, the Proposed Finding stated that the CIN failed to demonstrate that it had “existed as a tribal entity continuously since the time of first sustained contact in 1811” under § 83.7(a); that the CIN “has not formed a distinct social or geographical community since 1880” under § 83.7(b); and that “the evidence also demonstrates that the petitioner has not exercised political authority over its members since 1855” under § 83.7(c). Dkt. 33-2 at 2.

         The BIA considered comments submitted by the CIN and other interested parties in response to the Proposed Finding throughout 1998. In the final days of the Clinton Administration in January 2001, AS-IA Kevin Gover issued a Final Determination for Federal Acknowledgment, concluding the CIN should be federally recognized. Dkt. 33-3. AS-IA Gover departed from former AS-IA Deer's Proposed Finding after considering additional evidence of interactions between the Chinook and the United States in the early 1900s. Gover concluded, “while the petitioner meets the seven criteria throughout the period from first contact to the present, as an alternative basis for recognition, the petitioner has demonstrated prior federal acknowledgment in the form of a 1925 Act of Congress, and meets the seven criteria for the period from 1925 to present.” Dkt. 33-4 at 2-3.

         2. The DOI issues a Reconsidered Final Determination Against Acknowledgment in 2002.

         Plaintiffs' victory was short-lived, and a new presidential administration brought a change of fortune for the CIN. Several groups including the Quinault Indian Nation requested that the Interior Board of Indian Appeals (IBIA) reconsider AS-IA Gover's decision to grant the CIN's petition for federal acknowledgment. Dkt. 33-5. The IBIA affirmed the final determination but referred several matters outside of its jurisdiction to newly-confirmed Secretary of the Interior Gale Norton, who in turn referred them to the new AS-IA, Neal McCaleb, for reconsideration. Dkt. 33-5; Dkt. 33-6.

         In 2002, citing several perceived deficiencies with his predecessor's Final Determination, AS-IA McCaleb reversed course and issued a Reconsidered Final Determination Against Federal Acknowledgment, effectively rescinding the 2001 decision to federally recognize the CIN. Dkt. 33-7. McCaleb discounted several statutes AS-IA Gover had relied on as evidence that the United States had identified the Chinook as still existing in the early 1900s and ultimately concluded “the petitioner does not meet criteria 83.7(a), (b), or (c).” Dkt. 33-8 at 2-4.

         3. The DOI stops sending account statements to the CIN for funds held in trust for the Lower Band of Chinook and Clatsop Indians.

         In 1970, the Indian Claims Commission (ICC) awarded a final judgment of $48, 692 to the Lower Band of Chinook and Clatsop Indians for claims stemming from the uncompensated taking of tribal lands by the United States following the negotiation of two unratified treaties in 1851. See 6 Ind. Cl. Comm. 177, 208, 229-a (1958); 24 Ind. Cl. Comm. 56, 64, 88 (1970). The funds from the ICC Judgment are presently ...


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