Muwekma Ohlone Tribe v. Salazar

• Decision Date: 28 September 2011
• Docket Number: Civil Action No. 03–1231 (RBW).
• Citation: 813 F.Supp.2d 170
• Parties: MUWEKMA OHLONE TRIBE, Plaintiff, v. Ken SALAZAR, Secretary of the Interior, et al.,1 Defendants.
• Court: U.S. District Court — District of Columbia

813 F.Supp.2d 170

MUWEKMA OHLONE TRIBE, Plaintiff,

v.Ken SALAZAR, Secretary of the Interior, et al.,1 Defendants.

Civil Action No. 03–1231 (RBW).

United States District Court, District of Columbia.

Sept. 28, 2011.

Colin Cloud Hampson, Sonosky, Chambers, Sachse, Endreson & Perry, LLP, San Diego, CA, Harry R. Sachse, Sonosky, Chambers, Sachse, Endreson & Perry, LLP, Washington, DC, for Plaintiff.

Joseph N. Watson, Sara E. Costello, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

REGGIE B. WALTON, District Judge.

The Muwekma Ohlone Tribe (the “Muwekma”), the plaintiff in this civil case, brings this action under the United States Constitution and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 554, 701–706 (2006), seeking review of the “Final Determination Against Federal Acknowledgment of the Muwekma Ohlone Tribe” (“Final Determination”), 67 Fed. Reg. 58, 631 (2002), issued by the Department of the Interior (“DOI” or “the Department”), which declined to grant federal recognition to the Muwekma as a Native American tribe under the acknowledgment criteria of 25 C.F.R. § 83 (2006) (“Part 83”). Complaint (“Compl.”) ¶ 1. Currently before the Court are the parties' cross-motions for summary judgment. After careful consideration of the parties' submissions and all documents and exhibits presented with those filings,² the Court concludes for the following reasons that it must deny the plaintiff's motion for summary judgment and grant the defendants' cross-motion for summary judgment.

I. Background

A. Regulatory Framework

“The question of whether a Native American Group constitutes an Indian tribe is one of immense significance in federal Indian law.” H.R. Rep. 103–781, P.L. 103–454, Federally Recognized Indian Tribe List Act of 1994, 1994 U.S.C.C.A.N. 3768, 1994 WL 542741. This is because federal recognition of a Native American group as a tribe “is a prerequisite to the protection, services, and benefits” provided by the Federal government to Indian tribes, as well as 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 statutorily delegated authority, the Department is empowered with the authority to determine which currently unrecognized Native American groups meet the criteria for federal recognition. 25 U.S.C. §§ 2, 9 (2006); see also James v. HHS, 824 F.2d 1132, 1137 (D.C.Cir.1987) (stating that “Congress has specifically authorized the Executive Branch to prescribe regulations concerning Indian affairs and relations. The purpose of the regulatory scheme is to ... determine which Indian groups exist as tribes” (citations omitted)).

In 1978, the Department promulgated regulations that formally addressed the tribal recognition process, 43 Fed. Reg. 39, 361 (Sept. 5, 1978) (codified at 25 C.F.R. § 54 et seq.) (recodified at 25 C.F.R. § 83 et seq.), and it later revised these regulations in 1994, Muwekma Ohlone Tribe v. Kempthorne, 452 F.Supp.2d 105, 108 (D.D.C.2006) (Walton, J.). Under these regulations, there are three avenues available to an Indian entity seeking recognition as a tribe by the federal government. The principal means for an American Indian entity to be recognized as a tribe is under 25 C.F.R. § 83.7, which sets forth seven “mandatory criteria” for tribal recognition. 25 C.F.R. § 83.7. The Part 83 criteria are the following:

(a) The petitioner has been identified as an American Indian entity on a substantially continuous basis since 1900....

(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 petitioner has maintained political influence or authority over its members as an autonomous entity from historical times until the present....

(d) A copy of the group's present governing document including its membership criteria....

(e) The petitioner's membership consists of individuals who descend from a historical Indian tribe or from historical Indian tribes which combined and functioned as a single autonomous political entity....

(f) The membership of the petitioning group is composed principally of persons who are not members of any acknowledged North American Indian tribe....

(g) Neither the petitioner nor its members are the subject of congressional legislation that has expressly terminated or forbidden the [f]ederal relationship.

Id. The second means of attaining acknowledgment is through the “modified” Part 83 process, which is available to those entities that had been previously (but are not currently) acknowledged by the federal government as a Native American tribe. 25 C.F.R. § 83.8(a). Under the modified criteria, petitioning Native American entities that can provide substantial evidence of “[u]nambiguous previous [f]ederal acknowledgment,” id., need only provide the following showing as to the first three Part 83 criteria: (1) that it had been identified as an American Indian entity on a substantially continuous basis “since the point of [its] last [f]ederal acknowledgment,” 25 C.F.R. § 83.8(d)(1); (2) that “it comprises a distinct community at present,” 25 C.F.R. § 83.8(d)(2); and (3) that “political influence or authority is exercised within the group ... from the point of [its] last [f]ederal acknowledgment to the present,” 25 C.F.R. § 83.8(d)(3). Finally, the last option for federal acknowledgment available to a Native American group is to seek a waiver of the Part 83 requirements, which the Secretary has the authority to grant if waiver of the requirements would be “in the best interests of the Indians.” ³ 25 C.F.R. § 1.2.

A petitioner, however, is not required to provide conclusive evidence under each of the Part 83 criteria; rather, a “criterion shall be considered met if the available evidence establishes a reasonable likelihood of the validity of the facts relating to that criterion.” Id. Furthermore, the Department, in evaluating a petition, is required to “take into account historical situations and time periods for which evidence is demonstrably limited or not available.” 25 C.F.R. § 83.6(e). After evaluating all of the evidence proffered by a petitioner, should the Department conclude that the evidence “demonstrates that it does not meet one or more criteria,” or if “there is insufficient evidence that it meets one or more of the criteria,” then the Agency “may” deny acknowledgment to a petitioner.⁴ 25 C.F.R. § 83.6(d).

B. History of the Verona Band and its Descendants

The Muwekma Ohlone Tribe is a group of American Indians “located in Northern California in the San Francisco Bay Area.” Compl. ¶ 5. The name “Ohlone” is an alternative to “Costanoan,” which was a label given to “[t]he Indians along the Pacific coast near San Francisco Bay,” and “who were concentrated by the Spaniards before 1834 at the Mission San Jose.” Pl.'s First SJ Mem., Exhibit (“Ex.”) 7 (Proposed Finding) at 10.⁵ The plaintiff asserts that its members descended from these Indians, id., although nine other Indian groups that submitted petitions to the Department also “use[d] the Ohlone or Costanoan tribal name,” which, according to the Department, suggests that “the Muwekma ... does not have an uncontested claim to represent the descendants of all the Ohlone of the San Francisco Bay Area or all the territory of the Costanoan-speaking peoples,” id. at 9.

Nonetheless, the evidence in the administrative record does reflect that many of the Muwekma descended from Indians who resided near the Mission San Jose. Id. at 10. Specifically, there were two settlements located “in the area north of [the] historical Mission San Jose and east of San Francisco Bay, an area referred to today as the ‘East Bay.’ ” Id. “The most prominent of these settlements was located in a canyon just southwest of the town of Pleasanton, California, and near a railroad station named Verona.” Id. The settlement came to be “known as the Alisal or Pleasanton rancheria, and its members were referred to by [United States] Indian agents as the Verona band.” Id. The “second settlement, known as El Molino, was located near the town of Niles, which was within ten miles of Verona.” Id. These “two Indian settlements, or Rancherias, ... existed until the 1910[ ]s in Alameda County.” Id.

In 1906, the Department appointed C.E. Kelsey to conduct a census of landless Indians residing on the Alisal and Niles settlements, id. at 67, in connection with the Act of June 21, 1906, which, inter alia, appropriated funds for the purchase of land for Indians who were not then residing on reservations, Compl. ¶ 14. Kelsey ultimately prepared a documented titled “Schedule [S]howing [N]on-[R]eservation Indians in Northern California,” which noted that there were 29 individuals residing at the Pleasanton rancheria, and 14 individuals residing at the Niles Rancheria. Pl.'s First SJ Mem., Ex. 7 (Proposed Finding) at 67. In addition to the Kelsey census, the federal census conducted for Alameda County in 1910 “included a special Indian population schedule which enumerated 17 Indian residents of ‘Indian town,’ which appears to have been the Pleasanton rancheria.” Id. at 10. According to the Department's findings, approximately “48 percent of the [Muwekma's] members descend directly from an Indian ... on either the 1905–1906 Kelsey census of Pleasanton or Niles, or the 1910 Federal census of ‘Indian town.’ ” Id. Within that 48 percent, “[a]bout 70 percent of the [Muwekma's] members descend[ed] from an Indian woman, Avelina (Cornates) Marine ..., who, according to recollections of her son in the 1960[ ]s, may have been raised in the household of the chief of one of those Indian Rancherias before the 1880[ ]s.” Id. Furthermore, “[t]wo of Marine's children were listed on the 1910 census,” although “Marine's other children ... were not listed on [that] census.” Id. It is...