Kahawaiolaa v. Norton

• Decision Date: 27 October 2004
• Docket Number: No. 02-17239.,02-17239.
• Citation: 386 F.3d 1271
• Parties: Patrick L. KAHAWAIOLAA; Virgil C. Day; Samuel L. Kealoha, Jr.; Josiah L. Hoohuli; Ka Lahui Hawai'i, Plaintiffs-Appellants, v. Gale A. NORTON, in her capacity as Secretary of the Department of the Interior of the United States of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

386 F.3d 1271

Patrick L. KAHAWAIOLAA; Virgil C. Day; Samuel L. Kealoha, Jr.; Josiah L. Hoohuli; Ka Lahui Hawai'i, Plaintiffs-Appellants, v. Gale A. NORTON, in her capacity as Secretary of the Department of the Interior of the United States of America, Defendant-Appellee.

No. 02-17239.

United States Court of Appeals, Ninth Circuit.

Argued November 7, 2003.

Submitted October 27, 2004.

Filed October 27, 2004.

Walter R. Schoettle and Emmett E. Lee Loy, Honolulu, HI, for the appellants.

Elizabeth A. Peterson, Ellen J. Durkee, Environment & Natural Resources Division, Jeffery Bossert Clark, Deputy Assistant Attorney General, Thomas L. Sansonetti, Assistant Attorney General, Department of Justice, Washington, D.C.; R. Michael Burke, Assistant United States Attorney and Edward H. Kubo, Jr., United States Attorney, Honolulu, HI, for the appellee.

Appeal from the United States District Court for the District of Hawaii, Alan C. Kay, District Judge, Presiding. D.C. No. CV-01-00817-ACK.

Before: BROWNING, REINHARDT, and THOMAS, Circuit Judges.

THOMAS, Circuit Judge:

In this appeal, we consider whether the exclusion of native Hawaiians from the Department of Interior's regulations acknowledging the federally recognized status of Indian tribes comprises discrimination in violation of the Equal Protection component to the Fifth Amendment's Due Process Clause. We have jurisdiction to determine whether the regulations are unconstitutional, and we conclude that they do not violate the Fifth Amendment under rational basis scrutiny.

I

Despite the importance of the inquiry, the United States has struggled to find an adequate definition of an Indian tribe. There is no universally recognized legal definition of the phrase, and no single federal statute defining it for all purposes. Felix S. Cohen, Federal Indian Law 3 (1982). As a general matter, the Supreme Court has described a tribe as "a body of Indians of the same or similar race, united in a community under one leadership or government, and inhabiting a particular though sometimes ill-defined territory." Montoya v. United States, 180 U.S. 261, 266, 36 Ct.Cl. 577, 21 S.Ct. 358, 45 L.Ed. 521 (1901).

The significance of the question is immediately apparent from the text of the Indian Commerce Clause of the United States Constitution, which gives Congress power "[t]o regulate Commerce ... with the Indian Tribes." U.S. Const., Art. I, § 8, cl. 3. (emphasis added). Much of the theory that underpins Indian law is that the Indian tribes possessed certain sovereign rights based on their existence as distinct political entities exercising authority over their members prior to the incorporation of their territory into the United States, United States v. Wheeler, 435 U.S. 313, 322, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978); thus, "tribes retain whatever inherent sovereignty they had as the original inhabitants of this continent to the extent that sovereignty has not been removed by Congress." Montana v. Gilham, 133 F.3d 1133, 1137 (9th Cir.1998).

Despite this general recognition of inherent sovereignty (and, perhaps, the irony), as far as the federal government is concerned, an American Indian tribe does not exist as a legal entity unless the federal government decides that it exists.¹ 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. "Federal recognition may arise from treaty, statute, executive or administrative order, or from a course of dealing with the tribe as a political entity." William C. Canby, Jr., American Indian Law in a Nutshell 4 (4th ed.2004).

One of the more important periods in federal recognition of Indian Tribes commenced with the passage of the Indian Reorganization Act in 1934, 25 U.S.C. § 461 et seq., which was intended in part to permit the tribes to set up legal structures designed to aid in self-government. To organize as an Indian tribe, a group would need to adopt an appropriate constitution and bylaws, ratified by a majority vote of the adult members of the tribe. In addition, the organization was required to be approved by the Secretary of the Department of Interior. See 25 U.S.C. §§ 476, 477.² As a result of this process, ninety-nine tribes were organized; nintey-six were excluded. Alva C. Mather, Old Promises: The Judiciary and the Future of Native American Federal Acknowledgment Litigation, 151 U. Pa. L.Rev. 1827, 1831 (2003).

Thus, prior to the late 1970's, the federal government recognized American Indian tribes on a case-by-case basis. See 59 Fed.Reg. 9280 (1994); Golden Hill Paugussett Tribe v. Weicker, 39 F.3d 51, 57 (2d Cir.1994). In 1975, Congress established the American Indian Policy Review Commission to survey the current status of Native Americans. The 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. 25 C.F.R. § 83.1 et seq. Acknowledgment under these regulations is a prerequisite for certain federal services and benefits, entitling tribes "to the immunities and privileges available to other federally acknowledged Indian tribes by virtue of their government-to-government relationship with the United States...." 25 C.F.R. § 83.2.

Pursuant to the acknowledgment regulations, the Department of Interior reviews an application for recognition to determine whether the tribe can meet an extensive list of mandatory criteria: (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. 25 C.F.R. § 83.7. The Department of Interior applies its expertise to this determination and has established the Branch of Acknowledgment and Research which staffs historians and anthropologists to determine whether groups seeking recognition "actually constitute Indian tribes and presumably to determine which tribes have previously obtained federal recognition." James v. United States Dep't of Health and Human Servs., 824 F.2d 1132, 1138 (D.C.Cir.1987) (citing 25 C.F.R. § 83.6(b)); see also 25 C.F.R. § 83.11(e)(8). 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.

However, by their terms, the regulations are applicable "only to those American Indian groups indigenous to the continental United States which are not currently acknowledged as Indian tribes by the Department." 25 C.F.R. 83.3(a). The regulations define the "continental United States" as the "contiguous 48 states and Alaska." 25 C.F.R. 83.1. This geographic limitation means that native Hawaiians are excluded from eligibility to petition for tribal recognition under the regulations. Bluntly put, the Department of Interior was hanging out a sign that said: "No Hawaiians need apply."

It is this geographic limitation that is subject of this suit. Plaintiffs, who are native Hawaiians or native Hawaiian groups as defined by the Hawaiian Homes Commission Act, 42 Stat. 108, brought the present action seeking the right to apply for federal acknowledgment as an Indian tribe or tribes pursuant to 25 C.F.R., Part 83. Plaintiffs filed a complaint in the federal district of Hawaii alleging that by excluding native Hawaiians from the regulatory tribal acknowledgment process, the federal regulations exclude native Hawaiians from the benefits and protections of the Indian Reorganization Act, 25 U.S.C. § 461 et seq., and Indian Self-Determination and Education Assistance Act, 25 U.S.C. § 450 et seq., and that such exclusion is unconstitutional racial discrimination in violation of Plaintiffs' equal protection rights. The complaint sought declaratory and injunctive relief: a declaratory judgment that 25 C.F.R. §§ 83.1 and 83.3 amount to unconstitutional racial discrimination in violation of the Fifth Amendment, and a permanent injunction "enjoining and restraining Defendant, and her agents ... from administering 25 C.F.R., Part 83 and the Indian Reorganization Act ... and the Indian Self-Determination Act ... in a manner that excludes indigenous Hawaiians from the benefits and protection thereunder."

The Department of Interior filed a motion to dismiss for failure to state a claim, which the district court granted. The district court reasoned that the "requested relief necessarily involves the Court in deciding whether the [Department of Interior], and Congress, have inappropriately excluded Native Hawaiians from tribal recognition." Kahawaiolaa v. Norton, 222 F.Supp.2d 1213, 1222 (D.Haw.2002). Thus, the court found that "Plaintiffs' case raises a nonjusticiable political question because their challenge to the regulations surrounding tribal recognition involves matters that have been constitutionally committed to the other branches; and resolution by the Court would show a lack of respect due...