Muwekma Tribe v. Babbitt

Citation133 F.Supp.2d 42
Decision Date16 January 2001
Docket NumberNo. CIV.A.99-3261(RMU).,CIV.A.99-3261(RMU).
PartiesMUWEKMA TRIBE, Plaintiff, v. Bruce BABBITT, Secretary of the United States Department of the Interior, and Kevin Gover, Assistant Secretary for Indian Affairs, United States Department of the Interior, Defendants.
CourtU.S. Court of Appeals — District of Columbia Circuit

Renita Ford, U.S. Dept. of Justice, Environment & Natural Resources Div., Washington, DC, for Bruce Babbitt.

Renita Ford, U.S. Dept. of Justice, Environment & Natural Resources Div., Washington, DC, Robert Elijah Jordan, III, Steptoe & Johnson, Wahsington, DC, for Kevin Gover.

MEMORANDUM OPINION

URBINA, District Judge.

Granting the Plaintiff's Motion to Amend the Court's Order
I. INTRODUCTION

The Muwekma Tribe is a tribe of Ohlone Indians indigenous to the present-day San Francisco Bay area. In the early part of the Twentieth Century, the Department of the Interior ("DOI") recognized the Muwekma Tribe as an Indian tribe under the jurisdiction of the United States. In more recent times, however, and despite its steadfast efforts, the Muwekma Tribe has been unable to obtain federal recognition, a status vital for the Tribe and its members. Without federal recognition, the Tribe cannot receive the benefits of health care, housing, economic development, and self-governance that the United States provides to federally recognized tribes. See Pl.'s Mot. for Summ. J. at 2; 25 C.F.R. § 83.2.

The Muwekma Tribe filed a complaint in this court in December 1999. At that time, the Tribe had been engaged in the recognition process for ten years. Seeking an order compelling the DOI to complete its review within one year, the tribe named two defendants in its suit: Bruce Babbitt, in his official capacity as Secretary of the Interior, and Kevin Gover, in his official capacity as the DOI's Assistant Secretary for Indian Affairs. On June 30, 2000, the court granted partial summary judgment to the plaintiff and directed the defendants to submit a proposed schedule for resolving the plaintiff's petition. See Memorandum Opinion dated June 30, 2000 ("Mem. Op."). At length, the court approved the defendants' proposed schedule. See Order dated July 31, 2000 ("July Order"). The plaintiff now requests that the court amend the July Order to set a time by which the defendants must conclude consideration of the plaintiff's petition, a date the defendants did not include in their proposed schedule. See Pl.'s Motion to Amend Order. For the reasons stated herein, the court will grant the plaintiff's motion to amend the July Order.

II. BACKGROUND
A. The Federal Recognition Process

Congress has the power under the Indian Commerce Clause and the Treaty and War Powers to recognize Indian tribes. See U.S. CONST. art. I, § 8, cl. 3; art. II, § 2, c. 2; see also Morton v. Mancari, 417 U.S. 535, 552, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974). By delegating authority over Indian affairs to the DOI, see 25 U.S.C. §§ 2, 9, Congress has allowed the DOI to assume much of the responsibility for determining which tribes are eligible for a government-to-government relationship with the United States. For many years, the DOI made such determinations on an ad hoc basis. See 25 Fed.Reg. 39,361 (1978). In 1978, however, the DOI enacted regulations establishing procedures for the acknowledgment of tribes. See 43 Fed.Reg. 39,631 (1978) (codified at 25 C.F.R. Part 83). These procedures require the tribe seeking recognition to file a detailed description of its history. See 25 C.F.R. § 83.7. If the petitioning tribe can demonstrate previous federal acknowledgment,1 it need only demonstrate continued tribal existence since the time of prior federal acknowledgment. See id. § 83.3(g).

Federal acknowledgment is not a mere procedural formality. To the contrary, without federal acknowledgment, an Indian tribe would not be eligible for numerous federal programs that directly affect the tribe's health and welfare.2 For example, Congress has established programs and benefits for the education of tribal members in an effort to ameliorate high rates of illiteracy among Indian populations. See, e.g., Indian Self-Determination and Education Assistance Act, 25 U.S.C. §§ 450-458; Tribally Controlled Community College Assistance Act, 25 U.S.C. §§ 1801-1852. Congress has also enacted statutes to provide health services and to construct safe water-supply and water-disposal systems for Indian homes and communities. See, e.g., Indian Health Care Improvement Act, 25 U.S.C. § 1601 et seq. Federally recognized tribes benefit from other special general assistance and child welfare programs as well, including the Food Stamp Program, 7 U.S.C. §§ 2011-2036, and the Indian Child Welfare Act, 25 U.S.C. §§ 1901-1963. The Muwekma Tribe cannot benefit from these programs, however, if the United States does not officially recognize it as an Indian tribe.

The Tribe's lack of federal recognition also inhibits its ability to practice its religious beliefs in connection with proper treatment of the Tribe's dead. See Pl.'s Mot. for Summ. J. at 31. In 1991, Congress enacted the Native American Graves Protection and Repatriation Act to protect Indian remains and cultural items located on tribal and federal lands. The Act establishes the right of tribes to determine the disposition of remains and cultural objects found on tribal and federal lands and to demand repatriation of such items in the possession of a federal agency or museum. See 25 U.S.C. §§ 3001, 3002, 3005. By statute, however, only federally recognized tribes enjoy this right. See id. § 3001(7). Thus, although a number of museums possess cultural objects and remains of the Muwekma people, the Tribe cannot demand their repatriation until it receives federal acknowledgment. See Cambra Decl. ¶ 10.

B. The Muwekma Tribe's Efforts to Obtain Federal Recognition

The Muwekma Tribe commenced the recognition process on May 9, 1989, when it forwarded a letter of intent to file a petition for acknowledgment with the BIA's Branch of Acknowledgment and Research ("BAR"). See Pl.'s Mot. for Summ. J. at 8; 25 C.F.R. § 83.4. Thereafter, in accordance with 25 C.F.R. § 83.7, the Muwekma Tribe commissioned historians, anthropologists, and genealogists to prepare a detailed report on the history of the Tribe. See Compl. ¶ 11. This report formed the basis of the Tribe's petition for acknowledgment as a federally recognized Indian tribe, which it submitted to the BAR on January 24, 1995. See id. On April 6, 1995, after reviewing the Tribe's submission, the BAR forwarded a letter to the Tribe suggesting what was needed to convert their "preliminary effort into a fully documented petition." See Fleming Decl. dated Feb. 22, 2000 ("Fleming Decl."). Reasoning that the Tribe had not yet submitted a complete petition, the BAR stated that its letter should "not be considered as the formal technical assistance review of a documented petition which is required by the acknowledgment regulations (25 C.F.R. § 83.10(b)(2))." See id. The BAR added that the Tribe's petition was "very informative" and "well on its way to completion." See id.

The Tribe responded to the BAR's suggestions by submitting additional information in July and August 1995. See Pl.'s Mot. for Summ. J. at 8. The Tribe then requested from the BAR a ruling that the DOI had previously acknowledged the existence of the Muwekma Tribe.3 See id. The BAR did not respond until May 24, 1996, when it determined that the Muwekma Tribe had previously been recognized as the Pleasanton or Verona Band. See Compl. ¶ 11. Shortly thereafter, the Tribe met with BAR staff, Congresswoman Zoë Lofgren, and others to discuss the outstanding petition. See Fleming Decl. ¶¶ 22-23. At this meeting, the Tribe submitted additional information in support of its petition. See Pl.'s Mot. for Summ. J. at 9. The Tribe also wrote Ada Deer, Assistant Secretary of the Interior, to request "clear and concise time tables and responses to Muwekma's petition." See Fleming Decl. ¶ 25 and Ex. 15.

On October 10, 1996, the BAR sent the Tribe a "technical assistance letter" advising the Tribe of deficiencies in its petition and requesting additional information. See Pl.'s Mot. for Summ. J. at 10. By this time, 385 days had passed since the Tribe's initial submission. See id. On March 26, 1997, in response to the BAR's technical assistance letter, the Tribe submitted additional information. On June 30, 1997, the BAR issued a second technical assistance letter advising the Tribe of deficiencies in its petition and requesting additional information. See Compl. ¶ 11. The Tribe submitted a second set of additional information on January 16, 1998. See Fleming Decl., Ex. 23. The following month, the Tribe requested that the BAR place its petition on the "ready, waiting and active list." See Fleming Decl., Ex. 24.

On March 26, 1998, more than three years after the Tribe first filed its petition, the DOI notified the Tribe that the BIA was "placing the Muwekma petition on the ready for active consideration list on March 26, 1998. The petition will be evaluated in turn, after the petition of the Southern Sierra Miwok Nation."4 See Fleming Decl. ¶ 36 (emphasis added). Having received this notice, the Tribe hoped that the BIA would finally consider its petition, but again nothing happened. See Pl.'s Mot. for Summ. J. at 11. Indeed, on June 19, 1999, in response to a congressional inquiry, defendant Gover indicated that ten tribes were ahead of the plaintiff on the "ready" list and fifteen tribes were under "active consideration." See Fleming Decl., Ex. 15. Defendant Gover also indicated that "it may take two to four years before the petition will be reviewed." Id. By contrast, in its motion for summary judgment, the Muwekma Tribe estimated that without the court's intervention, the Tribe could wait 20 years for final review of its...

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