*fn15,The opinion of the court was delivered by: Reggie B. Walton United States District Judge,MUWEKMA OHLONE TRIBE, PLAINTIFF, v. KEN SALAZAR, SECRETARY OF THE INTERIOR, ET AL.,*FN1 DEFENDANTS." />

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Muwekma Ohlone Tribe v. Ken Salazar

September 28, 2011 *fn15


The opinion of the court was delivered by: Reggie B. Walton United States 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,*fn2 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."*fn3 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.*fn4 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.*fn5 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 from those unlisted children from whom "[t]he majority of the [Muwekma's] members descend." Id. Accordingly, "[a]ll of the [Muwekma's] members descend either from an Indian individual listed on the 1905-1906 Kelsey census," an Indian individual listed on the 1910 census, "or from an unlisted Marine sibling of an individual on these lists." Id.

The Department acknowledges that the Verona band was previously recognized by the federal government as an Indian tribe. Id. at 8. This prior recognition was based on evidence that "[t]he band was among the groups . . . under the jurisdiction of the Indian agency at Sacramento, California," and that "[t]he agency dealt with the Verona [b]and as a group and identified it as a distinct social and political entity." Pl.'s First SJ Mem., Ex. 47 (May 24, 1996 Letter from Department of Interior to Rosemary Cambra) at 1. Specifically, the Department found that in 1914, an agent of the Office of the Indian Affairs, C.H. Asbury, mentioned a "Verona band in Alameda County" as a "potential beneficiary of the" land-purchase program created by the Act of June 21, 1906. Pl.'s First SJ Mem., Ex. 7 (Proposed Finding) at 12. The Sacramento Agency also mentioned the possibility of purchasing land for the Verona band in 1923. Id. According to the Department, "[h]owever, no land was purchased for the group[,] and no negotiations to buy land on its behalf are known to have taken place." Id. And, "[i]n 1927, Superintendent L.A. Dorrington referred to the [Verona] band but concluded that land should not be purchased on its behalf." Id. Despite these references to the Verona band, the Department asserts that it is not aware of any "census of the members of the Verona band during the years between 1914 and 1927." Id. Nonetheless, the Department acknowledges that the Verona band had been previously recognized by the federal government from Asbury's identification of the Band in 1914 to Dorrington's recommendation that the government not purchase land for the Band in 1927, id. at 8, and that neither Congress nor any executive agency ever formally withdrew federal recognition of this group, Answer at 14.

In early 1989, the Muwekma submitted to the Department a letter of intent to petition for federal acknowledgment as an Indian tribe. Pl.'s First SJ Mem. at 11; Defs.' First SJ Mem. at 4. In its response, the Department directed the Muwekma to file a formal petition for acknowledgment along with detailed documentation in accordance with the Part 83 criteria. Pl.'s First SJ Mem., Ex. 46 (April 25, 1989 letter from Joseph Little to Rosemary Cambra) at 1 (cautioning Muwekma that "[b]ecause of the significance and permanence of acknowledgment as a tribe, the process of evaluation is a lengthy and thorough one"). The Muwekma then submitted a formal petition for acknowledgment in early 1995, as well as "thousands of pages" of supplemental material, Pl.'s First SJ Mem. at 11, which included "primary and secondary source documents, genealogical evidence, arguments by its researchers, and responses to questions posed by the Department's staff," Defs.' First SJ Mem. at 5. After reviewing the Muwekma's petition and the accompanying materials, the Department concluded preliminarily in May 1996 "that the Pleasanton or Verona Band of Alameda County[, from which members of the Muwekma tribe are directly descended,] was previously acknowledged by the federal government between 1914 and 1927." Defs.' First SJ Mem. at 5; see also Pl.'s First SJ Mem. at 11. The Department thus informed Muwekma "that it would be able to complete its petition documentation with the expectation that it would be evaluated under the federal acknowledgment regulations' modified criteria set out in § 83.8." Defs.' First SJ Mem. at 5.

C. The Muwekma's Petition for Acknowledgment

In its petition, the Muwekma asserts that the Verona band continued to exist as a tribal entity after 1928.*fn6 See Pl.'s First SJ Mem. at 5 (asserting that "Congress . . . never enacted legislation terminating the trust relationship with the . . . Verona Band," and that the Band did "not voluntarily abandon[] tribal relations."). For instance, the Muwekma presented evidence of a genealogical connection between the members of the Muwekma and "24 persons listed by the" Bureau of Indian Affairs ("BIA")*fn7 on a census of California Indians issued in 1933," Pl.'s First SJ Mem., Ex. 7 (Proposed Finding) at 12, and that its members had been listed on the judgment roll "on three separate occasions[:] in 1933, 1955[,] and 1970," Pl.'s First SJ Mem. at 6. This list of Indians "was produced as a result of an act passed by Congress in 1928 [that] gave the Court of Claims jurisdiction to hear claims against the United States on behalf of the 'Indians of California' for compensation for aboriginal territory acquired by the [federal g]overnment." Pl.'s First SJ Mem., Ex. 7 (Proposed Finding) at 12. Specifically, the Act provided compensation to those claimants who were "Indians . . . residing in the State of California on June 1, 1852[, as well as] their descendants [who were] living in [the] State." Id., Ex. 6 (Final Determination) at 22.

According to the Muwekma, "eligibility for the [judgment] roll depended on the applicant's ability to demonstrate affiliation with[,] and descent from[,] a tribe that had retained tribal relations at least through the period of treaty-making." Id. In support of its position that participation in the California Claims Act required membership in a federally recognized Indian tribe, the Muwekma cited a question on the application form that asked the following question: "What is your degree of Indian blood and to what Tribe or Band of Indians of the State of California do you belong?" Id. Furthermore, the Muwekma noted in its petition that fourteen of the eighteen applicants answered that question by identifying themselves as members of "some variant of 'Mission San Jose.'" Id.; see also id. at 23 ("In its discussion of these 18 applications, the petitioner concludes every chart entry but one with the statement that the evidence shows applicants 'identifying themselves' and their ancestors as 'Mission San Jose' Indians."). In particular, the Muwekma pointed to the application form of Jose Binoco, in which a BIA examiner had written on the application that "[t]he applicant is a full blood Indian. He is one of the last surviving members of the Mission San Jose Indian band"; the Muwekma argued that this comment exhibited an external identification by the BIA examiner of the individual's contemporary tribal affiliation. Id. at 24. All of this evidence, the Muwekma argued, supported its position that inclusion on the judgment roll "required tribal affiliation," and that "the approval of applications provid[es] . . . an identification of a contemporary entity." Id. at 21.

In addition to their ancestors' participation in the California Claims Act, the Muwekma asserted in its petition that two of its members attended schools operated by the BIA. Pl.'s First SJ Mem., Ex. 7 (Proposed Finding) at 74. Specifically, the Muwekma provided "twelve pages of records from the Sherman Institute . . . which demonstrate[d] that Domingo Marine attended this Indian school during the 1930's," as well as "nine pages of records which demonstrate that John and Rayna Guzman attended the Indian school at Chemawa, Oregon." Id., Ex. 6 (Final Determination) at 30. The Muwekma "contend[ed] that approval by the BIA of [school] enrollment constitutes evidence of an external identification of an Indian entity" by the BIA. Id.

The Muwekma also relied on scholarly publications in support of its position that external sources had identified it as a tribal entity. One example was "a paper written in 1955 by anthropologists Alfred Kroeber and Robert Heizer for use in Indian Claims Commission cases," id. at 32, which the Muwekma argued contained "a clear reference" to the Indians of the San Jose Mission, a group that had later taken refuge "in Pleasanton as one of the groups [that] continued to maintain their existence," Pl.'s First SJ Mem. at 39-40. The Muwekma relied as well on a book authored by Malcolm Margolin in 1978 titled The Ohlone Way: Indian Life in the San Francisco-Monterey Bay Area, in which Margolin made the following observation: "Today the descendants of the Ohlone Indians are still among us . . . [as] a small, seldom noticed part of the Bay Area population." Id. at 44. The Muwekma also cited a 1978 article by Richard Levy published in the Smithsonian Institution's Handbook of North American Indians, which mentioned the formation of the Ohlone Indian Tribe, Inc. in 1971. Pl.'s First SJ Mem., Ex. 7 (Proposed Finding) at 16. The Muwekma argued that all of these references evidence an identification of the entity by external sources.

D. The Department's Findings

The Department issued its proposed finding regarding the Muwekma's petition on July 30, 2001. Id. at 1. Because the Department initially made "a preliminary finding that the [group] was a successor to a previously recognized" tribe known as the Verona band, "which had been recognized as late as 1927," id. at 15, the Department concluded that the Muwekma need only present evidence that "satisf[ied] all of the criteria in paragraphs (a) through (g) of [Section] 83.7," 25 C.F.R. § 83.6(c), as modified by Section 83.8, 25 C.F.R. § 83.8(a), since 1927, id. at 15. Even under the modified criteria of Section 83.8, however, "the Department propose[d] to decline . . . acknowledge[ment of] the . . . Muwekma . . . as an Indian Tribe" because the Muwekma did "not meet all seven criteria required for Federal acknowledgment." Id. at 61. Specifically, the Department concluded that the Muwekma did not, inter alia, meet the standard set forth in Section 83.7(a), as modified by Section 83.8(d)(1), id., because the Muwekma failed to present sufficient evidence of identification by external sources that it was "the same tribal entity that was previously acknowledged[,] or as a portion that has evolved from that entity." Id. at 15 (quoting 25 C.F.R. § 83.8(d)(1)). After the Muwekma presented additional evidence in ...

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