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 209
For the foregoing reasons, we affirm both Lopesierra‘s conviction and his sentence.
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
I.
Federal recognition is a prerequisite to the receipt of various services and benefits available only to Indian tribes.
After the passage of the Indian Reorganization Act of 1934, Pub. L. No. 73-383, 48 Stat. 984 (codified as amended at
In 1978, pursuant to broad authority delegated by the Congress,1 Interior promulgated regulations establishing a formal recognition procedure (Part 83 process). Id. (citing
To be recognized under the Part 83 process, the petitioning group “must satisfy” seven criteria by submitting “thorough explanations and supporting documentation.”
- 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.”
- Establish that “[a] predominant portion” of its members “comprises a distinct community” that has existed “from historical times until the present.”
- Establish that it “has maintained political influence or authority over its members as an autonomous entity from historical times until the present.”
- 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.
- Establish that its “membership consists of individuals who descend from a historical Indian tribe or from his-
torical Indian tribes which combined and functioned as a single autonomous political entity.” - Establish that its “membership ... is composed principally of persons who are not members of any acknowledged North American Indian tribe.”
- Establish that “[n]either the petitioner nor its members are the subject of congressional legislation that has expressly terminated or forbidden the Federal relationship.”
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.”
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.”
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,
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),
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 6-year period during the 55 years between 1927 and 1982.”3 Joint Appendix (JA) 1506. It failed to satisfy criterion (b)—that it comprises a distinct community at present—because, while it showed some evidence of a distinct community existing as late as 1950, it failed to submit “documents or oral histories dealing with the present day.” JA 1560. It failed to satisfy criterion (c)—that it exercises political authority over members from its last recognition to the present—because, inter alia, “[s]ince 1990, participation in [Muwekma‘s] activities has been mostly by a core group of 20 individuals” and “[a] predominant portion of [its] membership has not participated in the group‘s activities.” JA 1600.
On June 6, 2003, Muwekma filed a second action in district court, challenging Interior‘s determination. Muwekma brought six causes of action, claiming that Interior‘s Final Determination (1) “unlawfully withdrew ... recognition” of Muwek-
Muwekma‘s principal claim was that Interior denied Muwekma equal protection by requiring Muwekma to proceed under the Part 83 process despite summarily recognizing two other Indian tribes—the Ione Band of Miwok (Ione) and the Lower Lake Rancheria of California (Lower Lake)—outside the Part 83 process. See Muwekma Ohlone Tribe v. Kempthorne, 452 F.Supp.2d 105, 110-11 (D.D.C.2006). Muwekma contended that it, like the Ione and Lower Lake tribes, was previously recognized and therefore entitled to the same summary approval granted to the latter two tribes. After both parties moved for summary judgment, the district court explained that it was “unable to discern [Interior‘s] rationale for requiring Muwekma to proceed through the Part 83 tribal acknowledgment procedures while allowing other tribes that appear to be similarly situated to bypass the procedures altogether.” Id. at 125. Accordingly, it remanded the case to Interior to supplement the record with a “detailed explanation of the reasons for its refusal to waive the Part 83 procedures.” Id. at 124.
On November 27, 2006, Interior filed a Supplemental Explanation with the district court. Interior explained that its decisions to summarily recognize Ione and Lower Lake “were not based merely on a finding that those groups were previously recognized by the Federal Government at some time in the past.” JA 106. Rather, unlike Muwekma, both Ione and Lower Lake had government-to-government interactions with the federal government decades after 1927. For example, the government held land in trust for Lower Lake until 1956, having surveyed Lower Lake‘s population in 1950 and consulted with Indians living on the land about selling it in 1953. Additionally, in 1980, Interior considered including Lower Lake on the list of federally-recognized tribes. Regarding the Ione tribe, in 1941, the government considered Ione‘s petition for the purchase of land; in 1970, two Ione members asked Interior about the status of their tribal land; and in 1972, California Indian Legal Services successfully brought a quiet title action on behalf of Ione which caused Interior to issue a letter “accept[ing] by relinquishment of title or gift [a] parcel of land to be held in trust for the Ione Band of Miwok Indians.” JA 111-12, 524-25. By contrast, Interior explained, “there is no evidence of any Federal dealings with a Muwekma group or Verona band after 1927.” JA 107 (emphasis added). As the district court summarized, “[u]nlike the evidence proffered by the Muwekma, which at best demonstrated interactions between the federal government and individuals that descended from the Verona Band, the evidence in the supplemental administrative record reflects dealings between the federal government and the Ione and Lower Lake tribes as entities.” Muwekma 2011, 813 F.Supp.2d at 199 (emphasis in original).4
Both parties again moved for summary
II.
We review a grant of summary judgment de novo. Bush v. District of Columbia, 595 F.3d 384, 387 (D.C.Cir.2010). Summary judgment is appropriate only when “there is no genuine issue as to any material fact.” McCready v. Nicholson, 465 F.3d 1, 7 (D.C.Cir.2006) (quoting
Muwekma mounts several challenges to the district court‘s judgment which we discuss seriatim.
A. Equal Protection and APA Claims
Muwekma asserts that Interior denied it the equal protection guaranteed by the Fifth Amendment to the United States Constitution because Interior summarily recognized Lower Lake and Ione outside the Part 83 process but did not do the same for Muwekma. Muwekma‘s APA claim similarly alleges that Interior‘s failure to recognize Muwekma was arbitrary and capricious because it failed to follow Interior precedent established in other recognition cases.
To prevail on an equal protection claim, the plaintiff must show that the government has treated it differently from a similarly situated party and that the government‘s explanation for the differing treatment “does not satisfy the relevant level of scrutiny.” Settles v. U.S. Parole Comm‘n, 429 F.3d 1098, 1102 (D.C.Cir.2005). Here, the relevant level of scrutiny is rational basis because Interior‘s action does not target a suspect class or burden a fundamental right. Tucker v. Branker, 142 F.3d 1294, 1300 (D.C.Cir.1998) (“A classification that does not burden either a fundamental right or a suspect class must be reviewed under the rational basis test.“); see also Kahawaiolaa v. Norton, 386 F.3d 1271, 1279 (9th Cir.2004), cert. denied, 545 U.S. 1114 (2005) (“[T]he recognition of Indian tribes remains a political, rather than racial determination. Recognition of political entities, unlike classifications made on the basis of race or national origin[,] are not subject to heightened scrutiny. Consequently, we apply rational basis review....“). We apply a similar
Muwekma asserts that, “[l]ike Lower Lake [and] Ione ..., Muwekma (1) was federally recognized during the 20th century ...; (2) was never terminated by any Act of Congress or court order; (3) for some unknown reason was forgotten and mistakenly left off of the BIA‘s list of recognized tribes; and (4) continued to exist and to seek reaffirmation.” Br. of Appellant 36. As Interior‘s twenty-one-page Supplemental Explanation makes clear, however, the Lower Lake and Ione tribes, unlike Muwekma, had multiple post-1927 government-to-government interactions with the United States. We agree with the district court‘s conclusion that Interior “viewed its interactions with the Ione and Lower Lake tribes as evidence that the federal government dealt with these entities as tribes.” Muwekma 2011, 813 F.Supp.2d at 199 (emphasis added).
Interior‘s emphasis on government-to-government interaction as a distinguishing characteristic is not arbitrary. Indeed, government-to-government interaction is a common characteristic of a recognized tribe. See, e.g.,
Muwekma emphasizes that its members enrolled in the California Claims Act in the 1930s, 1950s and 1970s6 and that Muwekma children attended BIA schools in the 1930s and 1940s. Like the district court, however, we believe that interaction between Muwekma members and the federal government does not equate to tribal interaction with the federal government on a government-to-government basis. Muwekma points to its tribal community activities and social interaction, including its
Muwekma alternatively contends that we cannot consider Interior‘s Supplemental Explanation‘s explication of the differences between Muwekma on the one hand and Ione and Lower Lake on the other because it represents a post hoc rationale. It is true that “an agency‘s action must be upheld, if at all, on the basis articulated by the agency itself.” Motor Vehicle Mfrs. Ass‘n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983). But it is entirely proper for an agency to provide an explanation if directed to do so on remand. See, e.g., Burlington Res. Inc. v. FERC, 513 F.3d 242, 244 (D.C.Cir.2008) (considering agency‘s explanation on remand for its differing treatment of natural gas producers).8
In sum, we agree with the district court that Interior‘s Supplemental Explanation adequately explained why Muwekma is not similarly situated to Ione or Lower Lake and, accordingly, Muwekma‘s equal protection claim fails.9
Muwekma next argues that, because it is the direct descendant of the Verona Band, Interior‘s finding that Muwekma is not an Indian tribe is the equivalent of terminating Muwekma‘s recognition. It argues that “only Congress has the authority to terminate a tribe‘s federal recognition.” Br. of Appellant 21. The district court concluded that this claim is barred by the statute of limitations. We disagree that the claim is time-barred, but find that it fails on the merits.
In James v. U.S. Department of Health & Human Services, 824 F.2d 1132 (D.C.Cir.1987), a faction of an unrecognized Indian group “took the position that the [group] was already federally recognized” and “therefore did not file a petition for federal acknowledgement, but rather sought ... a declaration ordering the Department of the Interior to add the [group] to the list of federally recognized tribes.” Id. at 1136-37. We affirmed the district court‘s dismissal of the complaint for failure to exhaust administrative remedies, explaining that “[t]he purpose of the regulatory scheme set up by the Secretary of the Interior is to determine which Indian groups exist as tribes [and] that purpose would be frustrated if the Judicial Branch made initial determinations of whether groups have been recognized previously or whether conditions for recognition currently exist.” Id. at 1137 (citation omitted). We further noted that dismissal served the primary purposes of exhaustion, to wit: “allowing the agency the opportunity in the first instance to apply its expertise ... and correct its own errors,” “aid[ing] judicial review” through factual development and “promot[ing] judicial economy by avoiding needless repetition of administrative and judicial factfinding, and by perhaps avoiding the necessity of any judicial involvement at all if the parties successfully vindicate their claims before the agency.” Id. at 1137-38.
The district court found that Muwekma‘s termination of recognition claim was distinct from a claim under the Part 83 process and therefore was not subject to administrative exhaustion. We disagree. In fact, the Part 83 process applies to a petition of a previously recognized tribe that seeks current recognition on that basis. See
Nevertheless, Muwekma‘s termination claim fails on the merits because Interior did not terminate Muwekma‘s recognition. While Muwekma—like the Verona Band—may have previously been a recognized tribe, a once-recognized tribe can fade away. Miami Nation of Indians of Ind., Inc. v. U.S. Dep‘t of the Interior, 255 F.3d 342, 346 (7th Cir.2001) (“It is ... obvious that Indian nations, like foreign nations, can disappear over time ... whether through conquest, or voluntary absorption into a larger entity, or fission, or dissolution, or movement of population.“), cert. denied, 534 U.S. 1129 (2002). Interior found that Muwekma had, in effect, faded away. There is no dispute that Muwekma was recognized in 1927 (as the Verona Band). But, when Muwekma contacted Interior in 1989 via the petitioning process, it was not on Interior‘s list of recognized Indian tribes nor was it receiving any services or benefits from the government. In addition, Interior concluded that Muwekma did not merit current recognition under the Part 83 process based on its failure to establish that it had exercised political authority over members, see
C. Due Process Claim
Muwekma argues that “as a previously recognized tribe” it had a due process right to a “formal adjudicatory hearing in any proceeding that could result in the loss of that recognition.” Br. of Appellant 44. Muwekma also contends that Interior violated Muwekma‘s due process rights by improperly allowing Interior staff with a conflict of interest to evaluate its petition. Both arguments fail.
A “threshold requirement of a due process claim” is “that the government has interfered with a cognizable liberty or property interest.” Hettinga v. United States, 677 F.3d 471, 479-80 (D.C.Cir.2012) (per curiam), cert. denied, 133 S.Ct. 860 (2013). But, for the same reasons Muwekma‘s termination of recognition claim fails, whatever due process interest Muwekma might have had as a previously-recognized tribe disappeared because that previously-recognized tribe no longer exists. See Miami Nation, 255 F.3d at 346; see also United States v. 8 Gilcrease Lane, Quincy, Fla. 32351, 638 F.3d 297, 300 (D.C.Cir.2011) (individual no longer possesses due process right to challenge seizure of property that is “voluntarily forfeited“). Moreover, as discussed above, because Muwekma was not receiving any government services or benefits in 1989 when it began the petitioning process, Interior‘s Final Determination did not cut off government services or benefits. Cf. Greene v. Babbitt, 64 F.3d 1266, 1271-73 (9th Cir.1995) (finding due process interest in tribal financial benefits that were cut off); see also Lyng v. Payne, 476 U.S. 926, 942 (1986) (“We have never held that applicants for benefits, as distinct from those already receiving them, have a legitimate claim of entitlement protected by the Due Process Clause....“); Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 576 (1972) (due process “is a safeguard of the security of interests
Muwekma also asserts that Interior violated the APA by allowing several Interior lawyers and staff who participated in defending Interior in litigation brought by Muwekma in 2000 and 2001 to participate in drafting Interior‘s 2002 Final Determination. Muwekma‘s argument is based on
D. Arbitrary and Capricious Claim
Finally, Muwekma argues that Interior‘s Final Determination was arbitrary and capricious for several reasons. We disagree.
The APA instructs the court to “hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
1. Decade-by-Decade and Conclusive Proof Tests
Muwekma claims that Interior improperly required it to “meet a decade-by-decade test for continuity [under
2. Difficulties in Compiling Historical Evidence
Muwekma also claims that Interior erred because it did not consider the difficulties “tribes may have in compiling comprehensive historical evidence” and did not consider Muwekma‘s pre-1927 evidence to close gaps in Muwekma‘s post-1927 evidence. Br. of Appellant 56; see also
3. Provision of Educational Services
Muwekma further asserts that Interior arbitrarily rejected the fact that Muwekma children attended BIA schools in the 1930s and 1940s as evidence of Muwekma‘s identification by an external source. See
With respect to Ione, Muwekma contends that “[w]hen Interior officials sought to determine in 1970 if Ione had ever been federally recognized, one of the first questions Interior asked was whether the BIA ever accepted Ione children in its schools.” Muwekma cites a letter in which Interior asked Ione a number of different questions pertaining to federal recognition, including: “Has the Bureau of Indian Affairs extended services to them at any time, accepted their children in Bureau schools or supplied JOM payments11 for them?” JA 532. The letter does not state that evidence of school attendance, without more, is probative. More importantly, the letter was written in 1973—years before Interior promulgated Part 83.
4. California Claims Act
Muwekma asserts that Interior erroneously rejected the fact that its members or their ancestors enrolled in the California Claims Act, see supra n.6, as evidence that Muwekma had been externally identified. We agree with the district court that this evidence does not constitute external identification of Muwekma. Muwekma 2011, 813 F.Supp.2d at 192. Enrollment in the California Claims Act did not require tribal affiliation. Instead, it was available to “all Indians who were residing in the State of California on June 1, 1852, and their descendants now living in said State.”
5. Survival of Verona Band Members
Muwekma argues that Interior erroneously failed to consider the fact that “in 1989 nine individuals who were from the Verona Band were still alive and very much a part of the Muwekma community” and that one of those individuals remains alive today. Br. of Appellant 58. Muwekma asserts, without citation, that “[t]his should be sufficient, without more, to support an inference of a continuing tribal community” necessary to satisfy section 83.7(b). Id. at 58-59. While it is true that
For the foregoing reasons, we affirm the district court‘s grant of summary judgment to Interior.
So ordered.
KAREN LECRAFT HENDERSON
UNITED STATES CIRCUIT JUDGE