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Chinook Indian Nation v. Bernhardt

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

January 10, 2020

CHINOOK INDIAN NATION, et. al., Plaintiffs,
DAVID BERNHARDT, et al., Defendants.




         THIS MATTER is before the Court on the parties' Cross-Motions for Partial Summary Judgment on Claims II-V. Dkt. ## 93 & 101. Plaintiff Chinook Indian Nation (CIN) is a tribal group and nonprofit corporation comprised of individuals claiming descent from the historic Chinook Tribe of the Columbia River Basin.[1] This case stems from CIN's decades-long battle to gain federal recognition as a Native American tribe from Defendant U.S. Department of Interior (DOI).[2] CIN began their petition process in 1981, briefly received recognition in 2001, but then saw the decision reversed in 2002. See Dkt. # 45 at 7-9. Under then-existing DOI regulations, the 2002 denial barred CIN from re-petitioning for recognition. In 2014, a proposed amendment to the DOI regulations would have created an exception to the ban on re-petitioning for groups able to demonstrate that the reasons for their denial are no longer valid. However, DOI ultimately eliminated this exception and continued to bar re-petitioning in the 2015 Final Rule, despite changing other aspects of the recognition requirements. CIN now challenges this decision to maintain the ban on re-petitioning in the 2015 regulation, arguing that it exceeds DOI's statutory authority, is arbitrary and capricious, and violates the Fifth Amendment's Equal Protection Clause.[3]


         The Court's prior Order on Defendants' Motion to Dismiss provides a full description of CIN and its attempt to gain federal recognition. See Dkt. # 45 at 2, 7-9. Because the claims at issue here do not turn on CIN's past attempt at recognition, the Court will not revisit that background. However, a detailed description of the evolution of DOI's regulations is warranted.

         1. The Tribal Recognition Process and the 1994 Amendments

         To be viewed as an independent entity by the United States, a Native American tribe must gain recognition by the Federal Government. “Federal recognition affords important rights and protections to Indian tribes, including limited sovereign immunity, powers of self-government, the right to control the lands held in trust for them by the federal government, and the right to apply for a number of federal services.” Kahawaiolaa v. Norton, 386 F.3d 1271, 1273 (9th Cir. 2004). Since 1978, DOI has controlled the tribal recognition process through its “Part 83” regulations, which set procedures for petitioning and establish mandatory criteria that petitioners must meet.[4] Those seven criteria require that:

(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.

Id. at 1274 (summarizing the criteria now contained in 25 C.F.R. § 83.11 (2015)). Within DOI, the Bureau of Indian Affairs' Office of Federal Acknowledgement (OFA) is tasked with implementing the Part 83 regulations on a petition-by-petition basis to determine which tribes should receive recognition.

         The Part 83 regulations have been amended twice. The first set of amendments occurred in 1994, and it was this manifestation that first barred tribes from re-petitioning for recognition if they had been previously denied (hereafter referred to as “the re-petition ban”). 25 C.F.R. § 83.3(f) (1994). See Procedures for Establishing That an American Indian Group Exists as an Indian Tribe, 59 Fed. Reg. 9280 (Feb. 25, 1994). In addition to the ban, the amendments also created an evidentiary standard that required petitioners to prove a “reasonable likelihood of the validity of the facts” related to each criterion-an ambiguous metric that fell somewhere below “conclusive proof.” 25 C.F.R. § 83.6(d) (1994).

         2. The 2014 Proposed Rule

         The second set of amendments to the Part 83 regulations was finalized in 2015, but the Proposed Rule-which is integral to CIN's claims-was published in 2014. See Federal Acknowledgment of American Indian Tribes, 79 Fed. Reg. 30766 (May 29, 2014). Acknowledging that “[t]he current [recognition] process has been criticized as ‘broken, '” the Proposed Rule aimed to “make the process and criteria more transparent, promote consistent implementation, and increase timeliness and efficiency, while maintaining the integrity of the process.” Id. at 30766. To achieve these goals, it added “objective standards” and altered some of the requirements from the 1994 regulations. Id. at 30766. Perhaps most controversially, the Proposed Rule newly defined the “reasonable likelihood” evidentiary standard to mean “there must be more than a mere possibility” but a petitioner need not prove that the facts are “more likely than not” true. Id. at 30773 (§ 83.10(a)(1)); see also Comments on Proposed Rule by George Roth, AR000521-548 (explaining petitioner-friendly innovations in the 2014 Proposed Rule). Other significant changes included:

. Requiring petitioners to demonstrate their existence as a distinct community and political authority only “from 1934 until the present, ” 79 Fed. Reg. at 30775 (§ 83.11(b), (c)), rather than “from historical times until the present, ” § 83.7(b), (c) (1994).
. Allowing automatic satisfaction of criteria (b) (Community) and (c) (Political Authority) with proof that “[t]he petitioner has maintained since 1934 to the present a State reservation” or “[t]he United States has held land for the petitioner or collective ancestors of the petitioner at any point in time from 1934 to the present.” 79 Fed. Reg. at 30775 (§§ 83.11(b)(3) & (c)(3)).
. Newly defining “substantial interruption” to mean “a gap, either as a fluctuation in tribal activity or a gap in evidence, of 20 years or less.” Id. at 30775 (§ 83.10(b)(5)).

         Some of these changes were implemented to ease the burden on petitioners in light of the U.S.'s ugly history of discouraging Indian identity. For example, the 1934 evaluation start date for criteria (b) and (c) “reflected] the United States' enactment of the Indian Reorganization Act (IRA), which reversed the Federal Indian policy of allotment and assimilation that was aimed at destroying tribal governments and their communities.” 79 Fed. Reg. at 30767. By moving the date up to 1934, the Proposed Rule spared petitioners the more difficult task of locating evidence from a time when “tribes had little to gain, and much to lose” by documenting their existence for the Federal Government. Id. at 30768.

         In light of these lower evidentiary burdens, the Proposed Rule also created an exception to the re-petition ban. Under the exception, groups that had previously been denied recognition could re-petition if: (i) they obtained consent from “[a]ny third parties that participated as a party in an administrative reconsideration or Federal Court appeal concerning the petitioner, ” and (ii) either “[a] change from the previous version of the regulations to the current version of the regulations warrants reconsideration of the final determination” or “[t]he ‘reasonable likelihood' standard was misapplied in the final determination.” Id. at 30773 (§ 83.4(b)(1)). A judge at DOI's Office of Hearings and Appeals (OHA) would serve a gatekeeping function by deciding whether re-petition applications met these initial requirements before OFA would consider re-petitions on the merits. Id. (§ 83.4(b)(2)).

         This possibility of re-petitioning combined with the new, more relaxed evidentiary requirements evoked a variety of responses. Many commenters supported DOI's revisions and even suggested they should go further by eliminating the third-party consent requirement for re-petitioning. See, e.g., AR000610-15; AR000616-43. As one former OFA staffer commented, “Acknowledgement decisions should not be based on political considerations . . .; [t]hey should be about doing the right thing in light of U.S. history and Indian law.” AR000610. In an interview, Assistant Secretary of Indian Affairs Kevin Washburn stated that the “modest exception” to the re-petition ban was warranted “just out of fairness” if the new rule made substantive changes to DOI's regulations. AR0006622. He went on to say that he was “doubtful that many groups would deserve reconsideration under the Proposed Rule.” AR0006623.

         Others, including local governments and previously-recognized tribes, argued vociferously that the chance for a second bite at a now easier-to-swallow apple would cause a flood of re-petitions. See, e.g., AR000600-10; AR000616-16; AR000644-47. They asserted that this would threaten their settled interests in land that could now be turned over to successful re-petitioners. See, e.g., Testimony of Connecticut towns, AR000575-84; Letter from California State Association of Counties, AR0000270-73; Testimony of Quinault Indian Nation, AR000550-58. Governmental entities and politicians from Connecticut were especially vocal in challenging the proposed changes. See Letter from Connecticut AG, AR0006892; Letter from Connecticut Towns, AR0009055; AR000575. The Quinault Tribe-the same tribe that originally argued against CIN's recognition and succeeded in having it rescinded in 2002-was also a critic. See AR000550.

         3. The ...

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