UPDATE ON THE MUWEKMA OHLONE TRIBE FEDERAL LAWSUIT

By Colin Cloud Hampson

I write to provide an update on the lawsuit that our law firm, Sonosky, Chambers, Sachse, Endreson & Perry, filed on December 8, 1999, on behalf of the Muwekma Ohlone Tribe against the Secretary of the Department of the Interior and Assistant Secretary for the Bureau of Indian Affairs. The purpose of the lawsuit was to develop a timeline to speed up the Bureau of Indian Affairs’ processing of the Muwekma Ohlone Tribe’s petition for recognition.

The lawsuit is pending in the U.S. District Court for the District of Columbia. It is brought under the federal Administrative Procedure Act (APA), which requires federal agencies such as the Bureau of Indian Affairs to conclude any matters presented to them within a reasonable time.

On June 30, 2000 the Court issued a ruling in favor of the Tribe and concluded that the

"ambiguous, indefinite time frame for review of the plaintiff’s petition constitutes unreasonable delay within the meaning of the APA," and that

"the defendants’ extensive delay in processing the plaintiff’s petition is unjustifiable and without good reason."

The Court directed the Bureau "to submit by July 28, 2000 a proposed schedule for resolving the plaintiff’s petition." On July 28, Assistant Secretary Gover submitted a proposal to the Court, as required by the June 30 order. He proposed to establish, on a provisional basis, a separate petition review track for certain tribes that the Assistant Secretary determines were previously recognized. Under this proposed policy, the Assistant Secretary would place a petitioning tribe on active consideration within one year of making a determination that the tribe was previously recognized by the federal government after 1900 and that the tribe’s current members descend from and are representative of the previously recognized entity.

With respect to the Muwekma Tribe, the Assistant Secretary stated that the Bureau wanted to review the documentation submitted by the Tribe in connection with questions raised by the Bureau in technical assistance letters. Specifically, the Bureau wished to determine whether the documentation submitted by the Tribe establishes "that Muwekma’s current members are representative of and descend from a previously recognized tribal entity, most likely the Verona Band." If the determination turned out to be positive, he committed to placing the Tribe on active consideration within one year of that date. The Assistant Secretary did not commit to a date by which the Bureau would issue a final decision on the Tribe’s petition.

On July 31, 2000, the Court issued another order approving the Assistant Secretary’s proposal and ordering the BIA to make its determination regarding the "responsiveness" of the Tribe’s documents by October 30, 2000.

On August 2 and 4 we filed, on behalf of the Tribe, motions to amend the Court’s July 31 order to require the Bureau to conclude its review of the petition and issue a final decision within 12 months of making its determination — due on October 30 — that Muwekma was previously recognized as the Verona Band, and that Muwekma’s members descend from and are representative of the Verona Band. We argued that the Court’s June 30 opinion required the Bureau to commit to a date by which the process will terminate, and Assistant Gover did not do this in his July 28 proposal.

On August 9, the Mashpee Wampanoag Indian Tribal Council filed a motion for leave to intervene in your case. By "intervene," we mean that they wanted to be a party in your case and have their say in what relief the Court would give the Muwekma Tribe. The Mashpee Tribe filed a petition for recognition with the BIA in 1990 and was placed on the "ready" list in 1996. We opposed their motion for intervention. On September 5, 2000, the Court denied their motion.

On October 30, 2000, the Bureau of Indian Affairs concluded that all of the Muwekma Tribal Members descend from an identified member of the community, or a close relation of a member, of the Verona Band, which was previously recognized by the federal government. As a result of this, we renewed our motion with the Court for an order imposing a deadline on the Bureau for completion of review of the Tribe’s petition on the grounds that, with the BIA’s certification of the Tribe’s previous recognition and the descent of its members from members of the previously recognized tribe, little remained to be determined in order to recognize the Tribe. We pointed out that the Department could simply correct the past error of withdrawing recognition from the Tribe and summarily reaffirm its status. In supplemental briefs ordered by the Court, the defendants argued that a deadline was not required by the Court’s June 30 opinion and order. In our supplemental brief, we also pointed to Assistant Gover’s decision, announced on January 3, 2001, to reaffirm the status of three tribes that were previously recognized, including the Lower Lake Rancheria, as evidence that Interior did not require substantial time or staff resources in order to recognize Muwekma.

On January 16, 2001, the District Judge granted our motion to amend his order of July 31 and directed the Bureau to place the Tribe’s petition on active consideration by February 12, 2001. He also ordered the Department to issue a preliminary determination by July 30, invite comments from the Tribe and third parties on it by October 29, 2001, and allow the Tribe to submit a reply to any third party comments by December 27, 2001. The BIA must issue a final determination by March 11, 2002 and inform the Court of such determination within seven business days. Except for the specific deadlines imposed in the order, the BIA must consider the petition in accordance with 25 CFR § 83.10, the regulations governing consideration of acknowledgment petitions.

The Court rejected the defendants’ argument that the regulations governing the recognition process provided an adequate timetable to ensure prompt resolution of the matter and held:

More importantly, the court has already determined that the defendants violated the APA, a ruling the defendants have not questioned. Specifically, the court ruled that the prior recognition of the Muwekma Tribe, and its removal from recognized status without a formal decision, defeated any "rule of reason" in making Muwekma wait as long as it has had to wait. See Mem. Op. at 13, 21.

Thus, whether or not the DOI’s regulations contain a timetable for resolving the plaintiff’s petition is irrelevant. In holding that the defendants violated the APA, the court acted to compel agency action, so that the agency could rectify the past delay, not so that the agency could continue to proceed on an already delayed course of action. Id. at 16-17.

The Court chastised the Department of Interior for its arguments submitted in this matter, finding them "not only erroneous, but . . . glaringly disingenuous as well." Id. at 14.

On January 16, 2001, Chairwoman Rosemary Cambra and a tribal delegation, including Alan Leventhal, and Mr. Sachse and Mr. Hampson of our firm, also met with the Acting Assistant Secretary and urged him simply to recognize the Tribe without further bureaucratic procedures. He refused to do this.

The Tribe then prepared and submitted additional material to the BIA in support of its petition for recognition, and on February 12, 2001, the Bureau of Indian Affairs, as required by the Court, placed the Tribe’s petition on active consideration and notified the Court that it had done so. The Court’s order requires the Bureau to issue a preliminary determination by July 30, 2001 and, after comments submitted by the Tribe and third parties and response to third party comments by the Tribe, issue a final determination on March 11, 2002.

 

For more information on the Judges' decision on the Muwekma Tribe vs. Bruce Babbit court case, you may visit the following website: http://www.dcd.uscourts.gov or download this official government file (in Adobe Acrobat Reader Format): http://www.dcd.uscourts.gov/99-3261.pdf.

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