Miami Nation of Indians of Indiana v. Babbitt

• Decision Date: 26 July 2000
• Docket Number: No. 3:92-CV-0586RM.,3:92-CV-0586RM.
• Citation: 112 F.Supp.2d 742
• Parties: MIAMI NATION OF INDIANS OF INDIANA, et al., Plaintiffs, v. Bruce BABBITT, et al., Defendants.
• Court: U.S. District Court — Northern District of Indiana

112 F.Supp.2d 742

MIAMI NATION OF INDIANS OF INDIANA, et al., Plaintiffs, v. Bruce BABBITT, et al., Defendants.

No. 3:92-CV-0586RM.

United States District Court, N.D. Indiana, South Bend Division.

July 26, 2000.

COPYRIGHT MATERIAL OMITTED

Arlinda F. Locklear, Jefferson, MD, Lorna K Babby, Native American Rights Fund, Washington, DC, David L Kiley, Sr., Albert C. Harker, Keith M. Harper, Kiley Kiley Harker Rogers, Michael and Certain, Marion, for Miami Nation of Indians of Indiana Inc. aka Miami Nation of Indiana and the Miami Indians of Indiana, Frances Dunnagan, Chairman of the Miami Nation of Indians of Indiana, Inc., plaintiffs.

MEMORANDUM AND ORDER

MILLER, District Judge.

Today concludes a series of motions and rulings relating to the challenge by the plaintiffs — Miami Nation of Indians of Indiana, Inc., and its chairman, to which the court refers simply as "the Miamis" in this opinion — to the Department of the Interior's decision not to recognize the plaintiffs as an Indian tribe. The parties agreed at the case's outset to divide the case into distinct phases, with opportunities for appropriately limited discovery to be afforded in each phase. The plaintiffs seek recognition as the Miami Nation of Indians, and they sue the Department of the Interior, the United States of America, and the Secretary of the Interior; this opinion refers to the defendants (and to the decision-makers in the Department of the Interior) collectively as "the Department." Review is under the Administrative Procedures Act, 5 U.S.C. § 706(2)(A).

In earlier rulings in this case, the court held that the statute of limitations barred the Miamis' challenge to an Interior Department action based on Attorney General Van Devanter's 1897 decision that the Miamis were no longer tribal Indians subject to the United States' trust responsibilities, and so granted the Department judgment on Count 1 of the Miami complaint. Miami Nation of Indians of Indiana, Inc. v. Lujan, 832 F.Supp. 253 (N.D.Ind.1993). The court next granted the Department judgment on Counts 2 and 3 of the complaint, holding that the regulations under which the Department decided the Miamis' acknowledgment petition were valid. Miami Nation of Indians of Indiana, Inc. v. Babbitt, 887 F.Supp. 1158 (N.D.Ind. 1995). Since then, the parties have moved toward resolution of the challenge to the Department's acknowledgment decision, obtaining along the way rulings on the scope of the record on which the court is to decide that challenge. Miami Nation of Indians of Indiana v. Babbitt, 979 F.Supp. 771 (N.D.Ind.1996); Miami Nation of Indians of Indiana, Inc. v. Babbitt, 55 F.Supp.2d 921 (N.D.Ind.1999).

Counts 4 through 6 of the Miamis' amended complaint remain for resolution today. In Count 4, the Miamis contend that the Department refusal to acknowledge them under the 1978 regulations, 25 C.F.R. Part 83 (1982), was arbitrary and capricious. In Count 5, they argue that the Department unlawfully refused to reconsider their petition under the 1994 revisions to the acknowledgment regulations, 25 C.F.R. Part 83 (1994). In Count 6, the Miamis contend that the 1897 decision to treat the recognized Miami Indians differently from other recognized Indian tribes is unlawful under the 1994 amendment to the Indian Reorganization Act, 25 U.S.C. § 476(g). The parties filed extensive and thorough briefs, making unnecessary the oral argument the Miamis request. For the reasons that follow, the court grants the Department's summary judgment motion and denies the Miamis' summary judgment motion. The court finds that the 1994 amendment to the Indian Reorganization Act did not affect the Miamis' rights or status, that the 1994 regulations don't apply to the Miami petition, and that the Department acted within its authority when it decided the Miamis' petition for acknowledgment — one of the hard decisions Congress assigned to the Department.

I.

A.

The 1978 acknowledgment regulations require a group seeking recognition as a tribe to satisfy seven criteria. 25 C.F.R pt. 83.7(a)-(g) (1982). The Department found that the Miamis fell short on criteria (b) and (c), which required that a "substantial portion of the petitioning group inhabits a specific area or lives in a community viewed as American Indian and distinct from other populations in the area, and that its members are descendants of an Indian tribe which historically inhabited a specific area" and "tribal political influence or other authority over its members as an autonomous entity throughout history until the present". The Department found that the Miami met those criteria years ago, but that the Miamis had changed since 1940 or so. The Department concluded that the Miamis didn't show that they had existed continuously as a community exercising political authority, and so hadn't shown by a reasonable likelihood that they continued to exist as a tribe throughout history.

The Miamis, disagreeing with that conclusion, met with Department personnel with an eye toward further research. The Department declined the Miamis' offer to do a network analysis to establish existence of contemporary Miami community. The Department didn't suggest, and the Miamis didn't propose, a systematic ethnography. The Miamis submitted additional research, and Department personnel made a site visit.

On February 28, 1992, Bureau of Indian Affairs experts in the Branch of Acknowledgment and Research drafted a request to the Assistant Secretary for Indian Affairs for "policy direction as to whether the level of social relationships and tribal political authority the Miami have maintained are consistent with the intent of the regulations. ..." The Branch of Acknowledgment and Research people viewed the material on criteria (b) and (c) as falling "between previous positive and negative cases." It is unclear from the record whether the Assistant Secretary received or responded to such a request. An April 3, 1992 briefing paper for the Assistant Secretary says, "The BAR has received direction indicating that while there is some minimal degree of social contact among a limited number of the Miami membership, and while there is an organization that claims to represent the group's interests, these do not reach the level envisioned for tribal status by the Acknowledgment regulations." On June 9, 1992, the Department announced a final determination against acknowledgment of the Miamis.

The Miamis contend that the 1992 final determination was arbitrary and capricious because (1) its geographic distribution analysis resulted from erroneous interpretation of the regulations, didn't take important data into account, and contravened the Department's analysis in other cases; (2) the Department declined the chance to obtain, through an ethnographic study, data it said was needed to prove community and ignored key evidence of community, such as kinship patterns and cultural differences; (3) in analyzing the political authority criterion, the Department required a showing of bilateral political relations, which isn't found in the regulations, and also made factual errors; and (4) the Department's decision-making process was seriously flawed.

B.

Federal acknowledgment establishes an intergovernmental relationship between the United States and the acknowledged tribe. An acknowledged tribe becomes a domestic dependent nation with inherent sovereign authority independent of the United States and independent of the state in which it is located. Cherokee Nation v. Georgia, 30 U.S. 1, 17, 5 Pet. 1, 8 L.Ed. 25 (1831). An acknowledged tribe may exercise jurisdiction over its territory and establish tribal courts than can assert criminal misdemeanor jurisdiction over non-Indians, and gains considerable other discretionary authority under federal law. See, e.g., 25 U.S.C. § 450-450n (Indian Self-Determination and Education Assistance Act of 1975); 25 U.S.C. §§ 2701-2721 (Indian Gaming Regulatory Act); 25 U.S.C. § 177 (Trade and Non-Intercourse Act).

For purposes of acknowledgment and dealings with the federal government, a tribe is a political institution, Morton v. Mancari, 417 U.S. 535, 553, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974), so racial or ancestral commonality isn't enough, without a continuously existing political entity, to constitute a tribe for these purposes, 25 C.F.R. § 83.3(a), (c), accord, United Houma Nation v. Babbitt, Civ. No. 96-2095(JHG), 1997 WL 403425, at *7 (D.D.C. July 8, 1997). With these concerns in mind, the 1978 regulations set forth seven criteria that a petitioning tribe had to meet (and had the burden of showing) for acknowledgment as a tribe:

83.7(a): that the petitioner has been identified from historical times until the present on a substantially continuous basis, as `American Indian,' or `aboriginal';

83.7(b): that a substantial portion of the petitioning group inhabits a specific area or lives in community viewed as American Indian and distinct from other populations in the area, and that its members are descendants of an Indian tribe which historically inhabited a specific area; and,

83.7(c): that the petitioner has maintained tribal political influence or other authority over its members as an autonomous entity throughout history until the present.

83.7 (d): the group's present governing document;

83.7(e): a list of all known current members of the group consisting of individuals who descend from a tribe which existed historically or from historical tribes which combined and functioned as a single autonomous entity;

83.7(f): that the membership of the petitioning group is composed principally of persons who are not members of any other North American Indian tribe; and

83.7(g): that the petitioner is not the subject of congressional legislation which has expressly terminated or forbidden the Federal relationship.

25 C.F.R. § 83.7. A petitioner has the burden of proof to present sufficient evidence to meet the criteria. The Department and the...