Miami Nation of Indians v. U.S. Dept. of Int.

• Decision Date: 15 June 2001
• Docket Number: No. 00-3465,PLAINTIFFS-APPELLANTS,DEFENDANTS-APPELLEES,00-3465
• Citation: 255 F.3d 342
• Parties: (7th Cir. 2001) MIAMI NATION OF INDIANS OF INDIANA, INC., ET AL.,, v. UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL.,
• Court: U.S. Court of Appeals — Seventh Circuit

Page 342

255 F.3d 342 (7th Cir. 2001)

MIAMI NATION OF INDIANS OF INDIANA, INC., ET AL., PLAINTIFFS-APPELLANTS, v. UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL., DEFENDANTS-APPELLEES.

No. 00-3465

IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Argued May 8, 2001

June 15, 2001

Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 92 C 586--Robert L. Miller, Jr., Judge. [Copyrighted Material Omitted] Albert C. Harker, Kiley, Kiley, Harker, Michael & Certain, Marion, MI, Arlinda F. Locklear (argued), Jefferson, MD, Lorna K. Babby, Native American Rights Fund, Washington, DC, for Plaintiffs-Appellants.

Jon E. DeGuilio, Office of the U.S. Atty., Dyer, IN, Jeffrey C. Dobbins (argued), Dept. of Justice, Environment & Natural Resources Div., Barbara Coen, Dept. of the Interior, Div. of Indian Affairs, Washington, DC, for United States Department of the Interior.

Jon E. DeGuilio, Office of the U.S. Atty., Dyer, IN, R. Anthony Rogers, Dept. of Justice, Environment & Natural Resources Div., Barbara Coen, Dept. of the Interior, Div. of Indian Affairs, Washington, DC, for United States, Bruce Babbitt and Gale A. Norton.

Before Bauer, Posner, and Coffey, Circuit Judges.

Posner, Circuit Judge

Article I of the Constitution authorizes Congress to regulate commerce with Indians. As an original matter, the power to recognize an Indian tribe might be thought quintessentially and exclusively Presidential, Western Shoshone Business Council v. Babbitt, 1 F.3d 1052, 1057 (10th Cir. 1993), like the power to recognize (or not recognize) a foreign nation, Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 410 (1964) ("political recognition is exclusively a function of the Executive"); Clark v. Allen, 331 U.S. 503, 514 (1947); Mingtai Fire & Marine Ins. Co. v. United Parcel Service, 177 F.3d 1142, 1145 (9th Cir. 1999), even though Article I also gives Congress the power to regulate foreign commerce. But Indian tribes are not foreign--they are what Chief Justice Marshall called "domestic dependent nations," Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 12 (1831)--and the general view nowadays, which none of the parties to this suit has questioned (though of course a concession on a jurisdictional issue does not bind us), is that Congress has the power, both directly and by delegation to the President, to establish the criteria for recognizing a tribe. See, e.g., Cherokee Nation of Oklahoma v. Babbitt, 117 F.3d 1489, 1503 (D.C. Cir. 1997); Fletcher v. United States, 116 F.3d 1315, 1333 (10th Cir. 1997); Western Shoshone Business Council v. Babbitt, supra, 1 F.3d at 1056-57. This makes practical sense. Congress has passed a number of statutes granting various benefits and immunities to Indian tribes, provided they are recognized by the federal government. See, e.g., Indian Self-Determination and Education Assistance Act of 1975, 25 U.S.C. sec. 450b(b); Indian Financing Act of 1974, 25 U.S.C. sec. 1452(c); see Greene v. Babbitt, 64 F.3d 1266, 1269 (9th Cir. 1995). Naturally and legitimately, Congress is concerned which groups of Indians are given the status of tribes. But the analogy to recognition of foreign governments has prevailed to the extent that Congress has delegated to the executive branch the power of recognition of Indian tribes without setting forth any criteria to guide the exercise of that power. See 25 U.S.C. sec.sec. 2, 9.

In 1978, the Department of the Interior promulgated a regulation that sets forth such criteria. A group of Indians that is seeking recognition as a tribe entitled to federal largesse (the regulation calls recognition "acknowledgment" and the terminology may be significant, as we'll see later) has to satisfy seven criteria: (a) the group has been identified from historical times to the present, on a substantially continuous basis, as Indian; (b) "a substantial portion of the... group inhabits a specific area or lives in a community viewed as American Indian and distinct from other populations in the area, and... its members are descendants of an Indian tribe which historically inhabited a spe cific area"; (c) the group "has maintained tribal political influence or other authority over its members as an autonomous entity throughout history 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 Indian tribe; (g) the group's status as a tribe is not precluded by congressional legislation. 25 C.F.R. sec. 83.7. In 1980, the Miami Nation of Indians of Indiana petitioned Interior for recognition that it was an Indian tribe. (Obviously the fact that it calls itself a "nation" is not dispositive.) Twelve years later, Interior ruled that the Miami had not satisfied criteria (b) and (c) (the ones we quoted rather than paraphrased) of the regulation and therefore would not be recognized. 57 Fed. Reg. 27312 (1992). The Miami Nation sought judicial review in the district court and appeals to us from that court's decision upholding Interior's ruling. 112 F. Supp. 2d 742 (N.D. Ind. 2000). Earlier decisions by the district court in this protracted litigation are cited in the 2000 opinion.

In 1854 the President of the United States had made a treaty (ratified by the Senate) with the "Miami Indians," 10 Stat. 1093, a tribe described in the treaty as consisting of both "Indiana Miamis" and "Western Miamis." Although the matter is not free from doubt, we shall assume that the Miami Nation, though limited to Indiana Miamis, is the tribe referred to in the 1854 treaty; and it is obvious from the treaty that the President recognized the tribe as being, indeed, an Indian tribe. It is equally obvious that Indian nations, like foreign nations, can disappear over time--can go the way of Sumeria, Phoenicia, Burgundy, the Ottoman Empire, Prussia, the Republic of Texas, and the Republic of Vietnam, whether through conquest, or voluntary absorption into a larger entity, or fission, or dissolution, or movement of population.

In the century and a half since President Pierce signed the treaty with the Miami Indians, and especially since 1940, the Miami has dwindled. Today there are only about 4,700 Indiana Miamis, scattered across the nation, with only one-third resident in a more or less contiguous group of five Indiana counties--in which, however, the Miamis, who live dispersed throughout the area rather than in their own separate communities within it, constitute less than one half of one percent of the counties' population. Only about 20 percent of this group socialize with one another. On average only 3.5 percent attend the annual reunion that is the sole organized event of the group. We were told at argument without contradiction that it has been decades since any member of the Miami Nation sought to avail himself or herself of any of the benefits or immunities that Congress has extended to members of recognized Indian tribes.

There is a tribal council, but it performs no meaningful governance functions. There is scant contact between the council and the rest of Indiana Miamis, and the instances in which the council has tackled important issues, such as cemetery relocation, are few and far between. Since 1940 the council has rarely dealt with the kind of governmental or political issues that agitate tribes, including hunting and fishing rights, disputes between tribal factions, and loss of tribal lands. The council has been more active since 1979, when it bestirred itself to seek federal recognition of the Miami Nation. It now operates a number of programs concerned with welfare (such as day-care programs) and economic development, and it has sought and obtained grants to fund these programs. But such programs, charitable rather than administrative in character, are a far cry from "governance."

The Indiana Miamis have thus failed to satisfy the two quoted criteria in the Department of the Interior's regulation. But they argue that the regulation is invalid because not authorized by Congress. This is clearly incorrect, see 25 U.S.C. sec.sec. 2, 9; James v. HHS, 824 F.2d 1132, 1137 (D.C. Cir. 1987); Western Shoshone Business Council v. Babbitt, supra, 1 F.3d at 1056-57; nor is it clear that it has to be authorized by Congress. Recognition is, as we have pointed out, traditionally an executive function. When done by treaty it requires the Senate's consent, but it never requires legislation, whatever power Congress may have to legislate in the area. What is more, and placing in question whether we are even authorized to review the decision not to recognize the Miami Nation, recognition lies at the heart of the doctrine of "political questions." The doctrine identifies a class of questions that either are not amenable to judicial resolution because the relevant considerations are beyond the courts' capacity to gather and weigh, see, e.g., Nixon v. United States, 506 U.S. 224, 228-29 (1993); Laurence H. Tribe, American Constitutional Law, vol. 1, 365-85 (3d ed. 2000), or have been committed by the Constitution to the exclusive, unreviewable discretion of the executive and/or judicial--the so-called "political"--branches of the federal government. Baker v. Carr, 369 U.S. 186, 217 (1962); Jones v. United States, 137 U.S. 202, 212 (1890); Tucker v. United States Dept. of Commerce, 958 F.2d 1411, 1415 (7th Cir. 1992); Made in the USA Foundation v. United States, 242 F.3d 1300, 1311-14 (11th Cir. 2001); Mingtai Fire & Marine Insurance Co. v. United Parcel Service, supra, 177 F.3d at 1144-45; Gordon v. Texas, 153 F.3d 190, 193 (5th Cir. 1998); cf. Barclays Bank PLC v. Franchise Tax Bd., 512 U.S. 298, 327-28 (1994); Banco Nacional de Cuba v. Sabbatino, supra, 376 U.S. at 410.

The second branch of the doctrine, which is based on the extreme sensitivity of the conduct of foreign affairs, judicial...