Muwekma Ohlone Tribe v. Salazar, No. 11–5328.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtKAREN LeCRAFT HENDERSON
Citation708 F.3d 209
PartiesMUWEKMA OHLONE TRIBE, Appellant v. Kenneth Lee SALAZAR, Secretary of the Interior, and Kevin K. Washburn, Assistant Secretary for Indian Affairs, Appellees.
Docket NumberNo. 11–5328.
Decision Date01 March 2013

708 F.3d 209

MUWEKMA OHLONE TRIBE, Appellant
v.
Kenneth Lee SALAZAR, Secretary of the Interior, and Kevin K. Washburn, Assistant Secretary for Indian Affairs, Appellees.

No. 11–5328.

United States Court of Appeals,
District of Columbia Circuit.

Argued Sept. 18, 2012.
Decided March 1, 2013.


[708 F.3d 210]


Appeal from the United States District Court for the District of Columbia (No. 1:03–cv–01231).

Colin Cloud Hampson argued the cause for appellant.
Harry R. Sachse and William F. Stephens were on brief.

Maggie B. Smith, Attorney, United States Department of Justice, argued the cause for appellees. Robert P. Stockman, Attorney, was on brief.


Before: HENDERSON, ROGERS and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LeCRAFT HENDERSON, Circuit Judge:

The Muwekma Ohlone Tribe (Muwekma) petitions this court to order the Secretary of the United States Department of the Interior and the Assistant Secretary for Indian Affairs (collectively Interior) to recognize it as an Indian tribe. Muwekma filed a “petition for acknowledgement” with Interior in 1995, which Interior denied in 2002. Muwekma challenged the

[708 F.3d 211]

denial in district court and, after Interior provided further explanation on remand, the district court granted Interior's cross-motion for summary judgment and denied Muwekma's summary judgment motion. Muwekma Ohlone Tribe v. Salazar, 813 F.Supp.2d 170 (D.D.C.2011) (Muwekma 2011 ). For the reasons set forth below, we affirm the district court.

I.

Federal recognition is a prerequisite to the receipt of various services and benefits available only to Indian tribes. 25 C.F.R. § 83.2. During much of our nation's history, the Congress recognized Indian tribes by treaty. See Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d 51, 57 (2d Cir.1994). In 1871, this practice ended and tribal recognition occurred through executive orders and legislation. Roberto Iraola, The Administrative Tribal Recognition Process and the Courts, 38 Akron L. Rev. 867, 871 (2005).

After the passage of the Indian Reorganization Act of 1934, Pub. L. No. 73–383, 48 Stat. 984 (codified as amended at 25 U.S.C. § 461 et seq.), “recognition proceedings were necessary because the benefits created by it were made available only to descendants of ‘recognized’ Indian tribes.” Golden Hill, 39 F.3d at 57. In 1934, Interior began conducting proceedings to determine if a tribe should be recognized. Id. From 1934 to 1978, Interior made recognition determinations on an ad hoc basis. Id.

In 1978, pursuant to broad authority delegated by the Congress,1 Interior promulgated regulations establishing a formal recognition procedure (Part 83 process). Id. (citing 25 C.F.R. §§ 83.1– 83.13). The Part 83 process 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). It is available to groups that are not “already acknowledged” or “receiving services from the Bureau of Indian Affairs” (BIA). Id. § 83.3(b).

To be recognized under the Part 83 process, the petitioning group “must satisfy” seven criteria by submitting “thorough explanations and supporting documentation.” Id. § 83.6(c). Specifically, it must:

(a) Establish that it “has been identified as an American Indian entity on a substantially continuous basis since 1900.” Identification must be shown “by other than the petitioner itself or its members.”

(b) Establish that “[a] predominant portion” of its members “comprises a distinct community” that has existed “from historical times until the present.”

(c) Establish that it “has maintained political influence or authority over its members as an autonomous entity from historical times until the present.”

(d) Provide either a copy of its current governing document, including membership criteria, or a description of its governing procedures and membership criteria in lieu of a document.

(e) Establish that its “membership consists of individuals who descend from a historical Indian tribe or from historical

[708 F.3d 212]

Indian tribes which combined and functioned as a single autonomous political entity.”

(f) Establish that its “membership ... is composed principally of persons who are not members of any acknowledged North American Indian tribe.”

(g) Establish that “[n]either the petitioner nor its members are the subject of congressional legislation that has expressly terminated or forbidden the Federal relationship.”

Id. § 83.7(a)–(g). The group must show that “available evidence establishes a reasonable likelihood of the validity of the facts relating to [each] criterion” but conclusive proof is not required. Id. § 83.6(d). Interior must “take into account historical situations and time periods for which evidence is demonstrably limited or not available.” Id. § 83.6(e).


Section 83.8(d) relaxes section 83.7's first three criteria for a group that was once recognized. Specifically, a previously recognized group need establish only the following to satisfy section 83.7(a)–(c): (1) it has been identified “since the point of last Federal acknowledgement.... by such sources as the same tribal entity that was previously acknowledged or as a portion that has evolved from that entity”; (2) “it comprises a distinct community at present”; and (3) “political influence or authority is exercised within the group at present.” Id.§ 83.8(d)(1)–(3). Alternatively, if the group cannot satisfy paragraphs (d)(1) and (d)(3), it “may demonstrate alternatively that it meets the requirements of the criteria in § 83.7(a) through (c) from last Federal acknowledgement until the present.” Id.§ 83.8(d)(5). Not every group must go through the Part 83 process to be recognized, however; Interior may waive the Part 83 process if waiver is, in Interior's view, “in the best interest of the Indians.” Id. § 1.2.

After Interior receives a petition, its Office of Federal Acknowledgement (OFA) evaluates it and prepares a summary for the Assistant Secretary for Indian Affairs (Assistant Secretary), who issues a “proposed finding.” Id. § 83.10(h). The group may respond, submit additional documentation and request an on-the-record meeting with the Assistant Secretary. Id. § 83.10(i)–(k). After review, the Assistant Secretary issues a “final determination” that either recognizes the group as a tribe or denies the petition. Id. § 83.10( l ) (2). The group may then request reconsideration with the Interior Board of Indian Appeals. See id. § 83.11(a)(1). If it does not file the request within ninety days after the Final Determination is published in the Federal Register, “the Assistant Secretary's decision shall be final for [Interior].” Id. § 83.11(a)(2).

Muwekma is a group of American Indians from the San Francisco Bay area. Its members descended from a previously-recognized tribe called the Verona Band. Both parties agree that the Verona Band was previously recognized by the federal government between 1914 and 1927. Muwekma asserts that nine members of the Verona Band were still alive and part of the Muwekma community in 1989 and one remains alive today. Yet there is no evidence that the Verona Band or Muwekma remained federally recognized after 1927. Muwekma acknowledges that “sometime after 1927 [Interior] ceased recognizing the Tribe for some purposes and substantially reduced the benefits, services and protection provided to the Tribe.” Compl. ¶ 2. Moreover, Muwekma has never appeared on the list of federally-recognized tribes that Interior began publishing approximately every three years beginning in 1979 and now publishes annually. See,

[708 F.3d 213]

e.g., Indian Tribal Entities That Have a Government–to–Government Relationship with the United States, 44 Fed. Reg. 7235 (Feb. 6, 1979); 25 U.S.C. § 479a–1.

In 1989, Muwekma submitted to Interior a letter of intent to petition to become a recognized Indian tribe.2 Interior directed Muwekma to submit a petition under the Part 83 process, which Muwekma filed in 1995. After a preliminary review, Interior concluded that, because the Verona Band had previously been recognized and Muwekma directly descended from the Verona Band, it would evaluate Muwekma's petition under the relaxed section 83.8 criteria for a previously recognized tribe. In 1998, Interior placed Muwekma's petition on the list of petitions ready for consideration.

One year later, Muwekma brought an action in district court under the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq., to compel Interior to complete its review within one year. See Muwekma Tribe v. Babbitt, 133 F.Supp.2d 30, 31 (D.D.C.2000). The court granted partial summary judgment in favor of Muwekma, ordering Interior to “submit to the court by July 28, 2000 a proposed schedule for resolving [Muwekma's] petition.” Id. at 41–42. After Interior submitted a proposed schedule, which schedule did not include a date by which it intended to decide Muwekma's petition, the court ordered Interior to, inter alia, act on the petition by March 11, 2002. Muwekma Tribe v. Norton, 206 F.Supp.2d 1, 2 (D.D.C.2002). On July 30, 2001, Interior issued a proposed finding rejecting Muwekma's recognition petition. In response, Muwekma submitted comments and additional evidence. On September 6, 2002 (after receiving several deadline extensions from the district court), Interior issued a 184–page Final Determination, adopting the conclusions of the proposed finding and providing additional analysis.

The Final Determination found that Muwekma failed to satisfy the three criteria set forth in section 83.7(a) through (c), as modified by section 83.8. According to Interior, Muwekma failed to satisfy criterion (a)—that it has been identified as an American Indian entity on a substantially continuous basis since 1927—because “the petitioning group was not identified as an Indian entity for a period of almost four decades after 1927, and for only a...

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64 practice notes
  • Humane Soc'y of U.S. v. Jewell, Civil Action No. 13–186 BAH
    • United States
    • United States District Courts. United States District Court (Columbia)
    • December 19, 2014
    ...favorable to the nonmoving party,’ could support a reasonable jury's verdict for the non-moving party.” Muwekma Ohlone Tribe v. Salazar, 708 F.3d 209, 215 (D.C.Cir.2013) (quoting McCready v. Nicholson, 465 F.3d 1, 7 (D.C.Cir.2006) ). In APA cases such as this one, involving cross-motions fo......
  • Cmty. Health Sys., Inc. v. Burwell, Civil Action No. 14–1432 (BAH)
    • United States
    • U.S. District Court — District of Columbia
    • July 7, 2015
    ...favorable to the nonmoving party,’ could support a reasonable jury's verdict for the non-moving party." Muwekma Ohlone Tribe v. Salazar, 708 F.3d 209, 215 (D.C.Cir.2013) (quoting McCready v. Nicholson, 465 F.3d 1, 7 (D.C.Cir.2006) ). In APA cases such as this one, involving cross-motions fo......
  • Research v. Fed. Trade Comm'n, Civil Case No. 13–1974 (BAH)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • May 30, 2014
    ...favorable to the nonmoving party,’ could support a reasonable jury's verdict for the non-moving party.” Muwekma Ohlone Tribe v. Salazar, 708 F.3d 209, 215 (D.C.Cir.2013) (quoting McCready v. Nicholson, 465 F.3d 1, 7 (D.C.Cir.2006)). When, as here, “a party seeks review of agency action unde......
  • Zhaoqing Tifo New Fibre Co. v. United States, Slip Op. 15–31.
    • United States
    • U.S. Court of International Trade
    • April 9, 2015
    ...situations differently.’ ” West Deptford Energy, LLC v. FERC, 766 F.3d 10, 21 (D.C.Cir.2014) (quoting Muwekma Ohlone Tribe v. Salazar, 708 F.3d 209, 216 (D.C.Cir.2013) ). Lastly, while Commerce must explain the bases for its decisions, “its explanations do not have to be perfect.” NMB Singa......
  • Request a trial to view additional results
64 cases
  • Humane Soc'y of U.S. v. Jewell, Civil Action No. 13–186 BAH
    • United States
    • United States District Courts. United States District Court (Columbia)
    • December 19, 2014
    ...favorable to the nonmoving party,’ could support a reasonable jury's verdict for the non-moving party.” Muwekma Ohlone Tribe v. Salazar, 708 F.3d 209, 215 (D.C.Cir.2013) (quoting McCready v. Nicholson, 465 F.3d 1, 7 (D.C.Cir.2006) ). In APA cases such as this one, involving cross-motions fo......
  • Cmty. Health Sys., Inc. v. Burwell, Civil Action No. 14–1432 (BAH)
    • United States
    • U.S. District Court — District of Columbia
    • July 7, 2015
    ...favorable to the nonmoving party,’ could support a reasonable jury's verdict for the non-moving party." Muwekma Ohlone Tribe v. Salazar, 708 F.3d 209, 215 (D.C.Cir.2013) (quoting McCready v. Nicholson, 465 F.3d 1, 7 (D.C.Cir.2006) ). In APA cases such as this one, involving cross-motions fo......
  • Research v. Fed. Trade Comm'n, Civil Case No. 13–1974 (BAH)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • May 30, 2014
    ...favorable to the nonmoving party,’ could support a reasonable jury's verdict for the non-moving party.” Muwekma Ohlone Tribe v. Salazar, 708 F.3d 209, 215 (D.C.Cir.2013) (quoting McCready v. Nicholson, 465 F.3d 1, 7 (D.C.Cir.2006)). When, as here, “a party seeks review of agency action unde......
  • Zhaoqing Tifo New Fibre Co. v. United States, Slip Op. 15–31.
    • United States
    • U.S. Court of International Trade
    • April 9, 2015
    ...situations differently.’ ” West Deptford Energy, LLC v. FERC, 766 F.3d 10, 21 (D.C.Cir.2014) (quoting Muwekma Ohlone Tribe v. Salazar, 708 F.3d 209, 216 (D.C.Cir.2013) ). Lastly, while Commerce must explain the bases for its decisions, “its explanations do not have to be perfect.” NMB Singa......
  • Request a trial to view additional results

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