Samish Indian Nation v. US

• Decision Date: 19 August 2005
• Docket Number: No. 04-5042.,04-5042.
• Citation: 419 F.3d 1355
• Parties: SAMISH INDIAN NATION, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

419 F.3d 1355

SAMISH INDIAN NATION, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.

No. 04-5042.

United States Court of Appeals, Federal Circuit.

August 19, 2005.

COPYRIGHT MATERIAL OMITTED

Craig J. Dorsay, Portland, Oregon, argued for plaintiff-appellant. With him on the brief were William R. Perry and Anne D. Noto, Sonosky, Chambers, Sachse, Endreson & Perry, Washington, DC.

Kathryn E. Kovacs, Attorney, Appellate Section, Environment & Natural Resources Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee. With her on the brief were Thomas L. Sansonetti, Assistant Attorney General and Todd S. Aagaard, Attorney. Of counsel on the brief was Jason Roberts, Attorney, Office of the Solicitor, United States Department of Interior, of Washington, DC.

Before CLEVENGER, SCHALL and GAJARSA, Circuit Judges.

GAJARSA, Circuit Judge.

The Samish Indian Nation ("Samish") appeal from the judgment of the United States Court of Federal Claims in favor of the United States. In two counts the Samish claimed federal benefits allegedly owed between 1969 and 1996. The trial court dismissed these counts with prejudice. In a third count the Samish claimed federal benefits allegedly owed since 1996. The trial court dismissed this count without prejudice. Samish Indian Nation v. United States, 58 Fed.Cl. 114 (2003) ("Samish").

The court concludes that two statutes on which the Samish premise their claims to benefits from 1969 to 1996, namely the Indian Self-Determination and Education Assistance Act ("ISDA"), 25 U.S.C. §§ 450 et seq., and the Snyder Act, 25 U.S.C. §§ 2, 13, are not money-mandating for purposes of the Samish claims. These claims are not within the trial court's Tucker Act or Indian Tucker Act jurisdiction, and we affirm their dismissal.

The court concludes, however, that the Samish claims to federal benefits for the 1969 to 1996 period are not time barred. We therefore reverse the dismissal of count two on limitations grounds and remand for further proceedings to determine whether the remaining statutes underlying the claim are money-mandating.

The court affirms the dismissal, without prejudice, of the Samish claims to post-1996 benefits.

I.

The Samish contend, in essence, that but for federal misconduct they would have received federal benefits since 1969. In many cases, since the 1970s, Congress has conditioned statutory benefits to Indian tribes on federal acknowledgment. The Samish contend that the federal government wrongfully refused them this status, and the counterfactual — that they would otherwise have been acknowledged — is the first element to their claims for benefits between 1969 and 1996.

For thirty-three years the Samish have, in administrative actions, sought federal acknowledgment for statutory benefits. During that time the Samish's ability to claim treaty rights, under the 1855 Treaty of Point Elliott, has also been disputed and, as shown below, come full circle. And during that time the law has also evolved concerning the relation between recognition for treaty purposes and recognition for statutory benefits, and more generally concerning the justiciability of federal recognition.

Federal recognition or acknowledgement is a prerequisite to an Indian tribe's right to claim benefits under federal statutes. 25 C.F.R. § 83.2 (2005). The federal government did not formalize the recognition process until 1978 with the Department of the Interior's adoption of the regulatory acknowledgment criteria now codified at 25 C.F.R. Part 83; before 1978 the executive branch accorded tribes recognition on an ad hoc basis. Cf. Kahawaiolaa v. Norton, 386 F.3d 1271, 1272-73 (9th Cir.2004) (discussing pre-1970s recognition process).

In 1972, the Samish first sought federal recognition for statutory benefits by petitioning the Department of the Interior. Those efforts are chronicled in several judicial opinions including, most recently, (1) Greene v. Babbitt, 943 F.Supp. 1278 (W.D.Wash.1996), and (2) United States Department of the Interior, Office of Hearings and Appeals, Recommended Decision of Administrative Law Judge Torbett in Greene v. Babbitt, No. Indian 93-1 (Aug. 31, 1995).

A.

The facts relevant to Samish recognition date to a treaty signed in 1855. The Samish descend from a signatory tribal party to the 1855 Treaty of Point Elliott, 12 Stat. 927, by which several tribes in the Pacific Northwest ceded land to the United States but retained various fishing rights.¹ See United States v. Washington, 641 F.2d 1368, 1373-74 (9th Cir.1981);² Duwamish v. United States, 79 Ct.Cl. 530, 1934 WL 2033 (1934) (Finding of Fact IV); cf. Samish Tribe of Indians v. United States, 6 Ind. Cl. Comm. 159, 159-62 (1958).

In 1958 the Indian Claims Commission reported that the Samish were "an identifiable tribe of American Indians residing within the territorial limits of the United States along the shoreline of Guemes Island and Samish Peninsula in what is now the Northwest portion of the State of Washington." Samish, 6 Ind. Cl. Comm. at 159. It is unclear from the present record, however, whether Congress ever ratified this finding by legislation.

In 1966 the Bureau of Indian Affairs ("BIA") drew up a list of Indian tribes that appeared in their files. According to the BIA, the 1966 list was not intended "to be a list of federally recognized tribes as such." Id. The list included the Samish. This was not a formal list premised on any legal basis. At the time, the BIA pursued its duties and responsibilities in such an ad hoc fashion that it was unable to determine which tribes were treaty recognized, and which were not.

B.

In 1969 the BIA restricted the list to tribes with a "formal organization" approved by the Interior Department. Id. Although the BIA employee who drew up the list had no authority to determine which groups would be accorded federal recognition, the 1969 list nonetheless became the basis on which the BIA classified the tribes. Id. A BIA employee testified before an Administrative Law Judge ("ALJ") in August 1994 that the Samish were removed from the 1969 list after the BIA's Portland, Oregon office, without any stated legal basis advised that the Samish were recognized ephemerally "for claims purposes only." The BIA's documentation from that time has now been lost. Id.

C.

In the early 1970s, Congress began conditioning statutory benefits for Indian tribes on federal recognition. See, e.g., Greene v. Lujan, No. C89-645Z, 1992 WL 533059, at *7 (W.D.Wash. Feb.25, 1992) (discussing Congress's conditioning of federal benefits on recognition after the ISDA's passage in 1975). The parties appear to agree that until the early 1970s individual Samish members received various federal benefits, though the benefits were not necessarily premised on tribal status or recognition. The government has admitted that before 1977, "it had issued blue identity cards to Samish that made them eligible for Indian benefits." Greene v. Babbitt, 64 F.3d 1266, 1274 (9th Cir.1995). The parties also appear to agree that by the mid-1970s the government stopped providing individual Samish various benefits because the Samish tribe lacked federal recognition.

In 1972 the Samish filed their first petition for federal acknowledgement, but the Department of the Interior took no action. Six years later the Interior Department published its final regulations, now codified at 25 C.F.R. Part 83, adopting standard procedures and criteria for according formal recognition to Indian Tribes. Under these recognition criteria, the BIA must "make inquiries into the social and political structure of the petitioning tribe," developing findings that are "inherently complex and prone to mischaracterization." Greene v. Lujan, 1992 WL 533059, at *8.

In 1979 the Samish filed a revised petition for recognition under the new Interior Department regulations. On November 4, 1982, the Assistant Secretary of Indian Affairs published a notice recommending against recognition. See Samish Indian Tribe; Proposed Finding Against Federal Acknowledgment, 47 Fed.Reg. 50110 (Nov. 4, 1982). On February 5, 1987, the Secretary of the Interior ("Secretary"), without an evidentiary hearing, published a final denial of the petition. See Final Determination That the Samish Indian Tribe Does Not Exist as an Indian Tribe, 52 Fed.Reg. 3709 (Feb. 5, 1987).³

In April 1989 the Samish filed suit in the United States District Court for the Western District of Washington challenging, on due process grounds, the decision denying recognition. On February 25, 1992, the district court vacated the Secretary's decision and remanded to the Interior Department for formal adjudication under § 553 of the Administrative Procedures Act ("APA"). Greene v. Lujan, No. C89-645Z, 1992 WL 533059 (W.D.Wash.1992), aff'd, 64 F.3d 1266 (9th Cir.1995).

The parties agreed on procedures to govern the remand. Specifically, they agreed (1) the ALJ would make written findings of fact with a recommendation to the Assistant Secretary of Indian Affairs as to whether the Samish qualified as an Indian tribe under the recognition criteria; and (2) the ALJ would consider only evidence in the existing administrative record, and any additional testimony provided at the hearing. Greene, 943 F.Supp. at 1282. The district court approved the agreement before remanding to Interior. Id.

An administrative hearing was conducted and, on August 31, 1995, the ALJ issued detailed proposed findings and recommended granting the Samish federal recognition pursuant to the criteria in 25 C.F.R. § 83.7 ("ALJ Recommendation"). He forwarded the proposed findings and recommendation to the Assistant Secretary of Indian Affairs for a final determination.

On November 8, 1995, an attorney with the Solicitor's Office in the Interior Department, with the government's expert witness from the hearing, conducted an ex parte meeting with the Assistant Secretary "for the purpose of...