Kahawaiolaa v. Norton

• Citation: 222 F.Supp.2d 1213
• Decision Date: 30 August 2002
• Docket Number: No. CIV. 01-00817ACKBMK.,CIV. 01-00817ACKBMK.
• Parties: Patrick L. KAHAWAIOLAA, et al., Plaintiffs, v. Gale A. NORTON, in her capacity as Secretary of the Department of the Interior of the United States of America, Defendants.
• Court: U.S. District Court — District of Hawaii

Page 1213

222 F.Supp.2d 1213

Patrick L. KAHAWAIOLAA, et al., Plaintiffs, v. Gale A. NORTON, in her capacity as Secretary of the Department of the Interior of the United States of America, Defendants.

No. CIV. 01-00817ACKBMK.

United States District Court, D. Hawai`i.

August 30, 2002.

Emmett E. Lee Loy, Honolulu, HI, Walter R. Schoettle, Honolulu, HI, for plaintiffs.

R. Michael Burke, Office of U.S. Atty., Honolulu, HI, for defendant.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS AND DENYING PLAINTIFFS' COUNTER-MOTION FOR SUMMARY JUDGMENT

KAY, District Judge.

BACKGROUND

This action arises out of an attempt by a group of Native Hawaiians ("Plaintiffs") to have certain regulations promulgated by the defendant Department of Interior ("DOI" or "Defendant") (the DOI is sued through DOI Secretary Gale A. Norton) declared unconstitutional and permanently enjoined. In particular, Plaintiffs object to the regulations at issue because the scope of such regulations exclude Native Hawaiians from the universe of indigenous groups that may become federally acknowledged as an "Indian tribe" with all the benefits with respect to that recognition.

Plaintiffs filed their suit on December 11, 2001. Defendant did not file an answer but instead filed a motion to dismiss on March 15, 2002. Plaintiffs filed their opposition to Defendant's motion and filed a counter-motion for summary judgment on March 28, 2002. Defendant filed a reply to Plaintiffs' opposition and an objection to Plaintiffs' motion for summary judgment on April 9, 2002. The Court heard oral arguments on June 10, 2002. During the hearing, the Court instructed the parties to file supplemental papers regarding certain aspects of the procedural background of the case that had not been briefed by the parties.¹ The parties filed their supplemental briefs on July 17, 2002 and replies on August 1, 2002.

STATUTORY AND REGULATORY BACKGROUND

Plaintiffs' suit implicates the Indian Reorganization Act ("IRA"), the Indian Self-Determination and Education Act ("ISDEA") and the federal acknowledgment regulations. The Court reviews each in turn.

I. The Indian Reorganization Act

The IRA was passed by Congress in 1934 with "[t]he overriding purpose ... to establish machinery whereby Indian tribes would be able to assume a greater degree of self-government, both politically and economically." Morton v. Mancari, 417 U.S. 535, 542, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974); The Mescalero Apache Tribe v. Jones, 411 U.S. 145, 152-154, 93 S.Ct. 1267, 36 L.Ed.2d 114 (1973); see 25 U.S.S 461 et. seq. The IRA defines "Indian" as:

The term "Indian" as used in [the IRA] shall include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction, and all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation, and shall further include all other persons of one-half or more Indian blood. For the purposes of said sections, Eskimos and other aboriginal peoples of Alaska shall be considered Indians. The term "tribe" wherever used in said sections shall be construed to refer to any Indian tribe, organized band, pueblo, or the Indians residing on one reservation. The words "adult Indians" wherever used in said sections shall be construed to refer to Indians who have attained the age of twenty-one years.

25 U.S.C. § 479. Additionally, the IRA "shall not apply to any of the Territories, colonies, or insular possessions of the United States...." The Court notes that when the IRA was passed in 1934, the State of Hawaii was then a territory of the United States. Hawaii was admitted as a state in 1959.

II. The Indian Self-Determination and Education Act

The ISDEA was passed in 1974 to further strengthen tribal government and interests. 25 U.S.C. § 450 et. seq. Congress stated the following policy:

The Congress hereby recognizes the obligation of the United States to respond to the strong expression of the Indian people for self-determination by assuring maximum Indian participation in the direction of educational as well as other Federal services to Indian communities so as to render such services more responsive to the needs and desires of those communities.

25 U.S.C. § 450a(a). The benefits that proceed from the ISDEA are available to "Indians" who are defined as "a person who is a member of an Indian tribe;" and an "Indian tribe" is further defined as "any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act ... which is recognized as eligible² for the special programs and services provided by the United States to Indians because of their status as Indians." 25 U.S.C. § 450b(d), (e).

III. The Federal Acknowledgment Process

Congress has delegated to the DOI the authority to adopt regulations to administer Indian affairs and to clarify departmental authority by regulation under 25 U.S.C. §§ 2, 9. See James v. United States Dep't of Health and Human Services, 824 F.2d 1132, 1137-38 (D.C.Cir.1987). Pursuant to this authority, the DOI has adopted comprehensive regulations that govern its decisions concerning tribal status set out in 25 C.F.R. Part 83 (the "acknowledgment regulations"). This part established procedures by which the DOI acknowledges that certain Indian groups exist as "tribes." Id. § 83.2.

The acknowledgment regulations provide that "[a]cknowledgment of tribal existence by the [DOI] is a prerequisite to the protection, services, and benefits of the Federal government available to Indian tribes by virtue of their status as tribes." Id. The regulations apply only to "those American Indian groups indigenous to the continental United States which are not currently acknowledged as Indian tribes by the Department. It is intended to apply to groups that can establish a substantially continuous tribal existence and which have functioned as autonomous entities throughout history until the present." 25 C.F.R. § 83.3(a).

STANDARDS OF REVIEW

I. MOTION FOR SUMMARY JUDGMENT

Summary judgment shall be granted where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R.Civ.P. 56(c). The standard for summary adjudication is the same. See State of Cal. v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998). One of the principal purposes of the summary judgment procedure is to identify and dispose of factually unsupported claims and defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The United States Supreme Court has declared that summary judgment must be granted against a party who fails to demonstrate facts to establish an element essential to his case where that party will bear the burden of proof of that essential element at trial. See id. at 322, 106 S.Ct. 2548. "If the party moving for summary judgment meets its initial burden of identifying for the court the portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact [citations omitted], the non-moving party may not rely on the mere allegations in the pleadings in order to preclude summary judgment." T.W. Elec Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987).

Rather, Rule 56(e) requires that the nonmoving party set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial. See id. at 630. At least some "significant probative evidence tending to support the complaint" must be produced. Id. Legal memoranda and oral argument are not evidence and do not create issues of fact capable of defeating an otherwise valid motion for summary judgment. See British Airways Bd. v. Boeing Co., 585 F.2d 946, 952 (9th Cir.1978).

The standard for a grant of summary judgment reflects the standard governing the grant of a directed verdict. See Eisenberg v. Ins. Co. of North America, 815 F.2d 1285, 1289 (9th Cir.1987) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Thus, the question is whether "reasonable minds could differ as to the import of the evidence." Anderson, 477 U.S. at 250-51, 106 S.Ct. 2505.

The Ninth Circuit has established that "[n]o longer can it be argued that any disagreement about a material issue of fact precludes the use of summary judgment." California Architectural Bldg. Products, Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir.1987). Moreover, the United States Supreme Court has stated that "[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Indeed, "if the factual context makes the nonmoving party's claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial." Franciscan Ceramics, 818 F.2d at 1468 (emphasis in original) (citing Matsushita, 475 U.S. at 587, 106 S.Ct. 1348). Of course, all evidence and inferences to be drawn therefrom must be construed in the light most favorable to the nonmoving party. See T.W.Elec.Serv., 809 F.2d at 630-31.

II. Motion to Dismiss

Under Rule 12(b)(6), in ruling on a motion to dismiss for failure to state a claim upon which relief can be granted, this Court must accept as true the allegations contained in the complaint and view them in a light most favorable to the claimant. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Wileman Bros. & Elliott, Inc. v. Giannini, 909 F.2d 332, 334 (9th Cir.1990); Shah v. County of Los Angeles, 797 F.2d 743, 745 (...