Court: District Court, N.D. California; March 12, 2019; Federal District Court
The Tolowa Nation, an Indian tribe, is suing the United States and related agencies under the Administrative Procedure Act (APA) following the rejection of its application for federal recognition as a sovereign tribe. The case centers on one specific criterion from the Bureau of Indian Affairs (BIA) review process: whether a significant portion of the Tolowa Nation can demonstrate that it comprises a distinct community that has persisted from historical times to the present. The BIA found that the evidence presented by the Tolowa Nation was insufficient to meet this criterion.
The Nation challenges the BIA’s final decision on two grounds: first, that the BIA applied an incorrect evidentiary standard, which constitutes a failure to follow proper procedures under APA section 706(2)(D); second, that the BIA’s conclusion regarding the lack of a distinct community is not supported by the record and is therefore arbitrary and capricious under APA section 706(2)(A). The Tolowa Nation seeks summary judgment to overturn the BIA’s ruling and requests a judicial declaration recognizing it as a federal Indian tribe. Conversely, the BIA has filed a cross-motion for summary judgment to uphold its decision.
Historically, the Tolowa people were identified by the federal government in 1851 as distinct from surrounding tribes due to their unique language and culture. Initial contact with the federal government began in 1853, followed by attempts to relocate them to reservations between 1855 and 1861. The establishment of federally recognized rancherias occurred in the early 1900s, but the Tolowa Nation claims descent from the survivors of the original Tolowa villages who did not join these rancherias. The Nation differentiates between two groups: the "river Indians," who were primarily landless, and the "lake Indians," who owned property and maintained a distinct community. The Nation argues that the BIA's decision fails to recognize the historical continuity and distinctiveness of their community.
The Nation claims its members have maintained their community through the Del Norte Indian Welfare Association (DNIWA), established in 1928, which provided organization and leadership during periods of disorganization and federal recognition termination (1966-1983). This foundation supports the Nation's assertion of being a separate community deserving federal recognition. In 1982, the Nation, then known as the "Tolowa-Tututni Tribe of Indians," submitted a federal recognition petition to the Department of the Interior (DOI), which was actively considered starting in 2009. A Proposed Finding in 2010 indicated insufficient evidence for acknowledgment, and in January 2014, the DOI issued a Final Determination reaffirming this stance, stating that the evidence did not support the existence of a distinct community. The Nation appealed this decision, which was upheld by the Interior Board of Indian Appeals in 2016, leading to the current judicial review under the Administrative Procedure Act (APA). The review is not a summary judgment under Rule 56 but rather a legal examination of the DOI's denial of recognition based solely on the administrative record. The Nation's Complaint includes three claims: (1) the DOI did not apply the correct evidentiary standard; (2) the DOI improperly concluded the Nation was not a distinct community; and (3) a request for a judicial declaration regarding federal recognition.
A court can invalidate an agency's final action under the Administrative Procedure Act (APA) if it is deemed "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," or if the action fails to follow required procedures. The arbitrary and capricious standard is deferential, presuming agency validity and requiring courts to affirm actions if a reasonable basis exists. An agency's action may be considered arbitrary if it relies on inappropriate factors, neglects significant aspects of the issue, provides explanations contrary to evidence, or is implausibly unreasonable. Procedural compliance review is strict but limited to ensuring adherence to statutory procedures.
Federal recognition is essential for tribes to access specific services and benefits, establishing a government-to-government relationship with the U.S. and affirming tribal sovereignty. Congress holds the ultimate authority to recognize tribes under the Indian Commerce Clause. In 1978, the Department of the Interior (DOI) established the Part 83 process to formally recognize nonrecognized tribes, which requires groups to demonstrate continuous tribal existence and autonomy. The process applies only to tribes not already acknowledged or receiving Bureau of Indian Affairs services. To gain recognition, a petitioning tribe must meet seven criteria by providing detailed explanations and documentation, with the burden of proof resting on the tribe. While conclusive proof is unnecessary, the tribe must show a reasonable likelihood of the facts' validity. The DOI considers historical context when evaluating limited evidence. After a petition is submitted, the Office of Federal Acknowledgement (OFA) makes an initial determination, followed by a review and proposed finding from the Assistant Secretary for Indian Affairs.
The petitioning tribe has the opportunity to respond, submit further documentation, and request an on-the-record meeting with the Assistant Secretary. Following this, the Assistant Secretary issues a "final determination" to either recognize or deny the petition. Appeals against this determination are handled by the Interior Board of Indian Appeals, and decisions can be challenged in federal court within six years of the final agency decision. The key criterion in this case is whether the petitioning group can prove that a "predominant portion" comprises a distinct community existing historically up to the present. "Community" is defined as a group with consistent interactions and social relationships among members, distinguishable from nonmembers, and must be understood in light of the group's history, geography, culture, and social organization. Evidence supporting community can include high marriage rates within the group and significant social interactions, while certain thresholds, like geographic concentration or cultural distinctiveness, can independently demonstrate community.
The Nation argues that the Department of the Interior (DOI) did not follow proper procedures in evaluating its application, asserting a violation of 706(2)(D). It claims the DOI failed to adhere to section 83.6(d), which requires a criterion to be considered met if evidence suggests a reasonable likelihood of validity without needing conclusive proof. The Nation contends the DOI's decision was improperly based on insufficient evidence rather than a comprehensive evaluation of all available evidence. However, the regulations indicate that the burden of proof lies with the petitioning tribe, as outlined in several sections, including the requirement for thorough explanations and documentation in the petition.
The Department of the Interior (DOI) is tasked with reviewing evidence related to the Nation's petition but the burden of production lies with the Nation initially. The DOI can deny a petition if the evidence does not meet established criteria. The regulations require assessment of the overall sufficiency of evidence rather than focusing solely on individual pieces. The Nation incorrectly believes it needs to demonstrate only a "reasonable basis" for meeting the criterion, whereas the appropriate standard is the sufficiency of the entire record per section 83.7(b).
The Nation presents two arguments related to claims of arbitrary and capricious action under section 706(2)(D). Firstly, it asserts that the DOI did not give proper weight to the evidence, resolving doubts against the Nation and requiring conclusive evidence, contrary to section 83.6(d). Secondly, the Nation claims that the DOI's expectation for it to prove non-affiliation with neighboring rancherias exceeds procedural requirements, arguing that evidence of continuous existence should suffice. However, the Nation failed to provide evidence of social exclusivity between its ancestors and current members and did not meet the criterion of a distinct community as required by the DOI.
Regarding the arbitrary and capricious claim under section 706(2)(A), the Nation contends that the DOI's finding of the Tolowa Nation not being a distinct community contradicts the evidence. The Nation believes the burden placed on it to differentiate itself from nearby rancherias disregards the historical context of the Tolowa people. The DOI evaluated community development over six historical time periods from 1853 to 2010, ultimately determining that the evidence was insufficient to establish the Nation as a distinct continuous community or to show its evolution separate from the rancherias formed between 1906 and 1915.
The Department of the Interior (DOI) determined that the Nation failed to demonstrate consistent interactions and significant social relationships within its membership, distinguishing them from nonmembers. The DOI's findings indicated that before the formation of rancherias, there was insufficient evidence of the Nation’s ancestors existing as a distinct community separate from those of the Smith River or Elk Valley rancherias. Key issues included a lack of contemporary documentation identifying individuals as ancestors of the Nation or linking them to exclusive social interactions with other Tolowa Indians in the region.
While the Nation argued that Tolowa Indians in different villages, such as Lake Earl, represented separate existences leading to the formation of the Nation, the DOI countered that the evidence merely confirmed the presence of Tolowa Indians, not distinct bands. The DOI stressed that the Nation needed to show it existed as a distinct community historically, as defined in regulatory criteria. Despite acknowledging the presence of Tolowa people in Del Norte County, the DOI found that the evidence did not support claims of significant social interactions or community differentiation among ancestors.
Moreover, the DOI concluded that there was no evidence indicating that the Nation's ancestors evolved into a distinct community after the rancherias were established. Although some ancestors were identified, there was no proof they formed a separate community from rancheria members. The Nation's assertion that its ancestors did not enroll in rancherias due to land ownership was found to lack sufficient supporting evidence, and the DOI's analysis on land status did not clarify its impact on social interactions. Thus, the DOI upheld its findings of insufficient evidence to distinguish the Nation's community from other Tolowa during both historical and contemporary periods.
Land status distinctions among families were insufficient to demonstrate the existence or evolution of a distinct Indian tribal community separate from the rancherias. The Nation's ancestors were not socially distinguished from rancherias' members, as evidenced by their involvement with the DNIWA, which was not an exclusive organization for the Nation's ancestors but included rancheria members. The DOI deemed DNIWA an advocacy group rather than a distinct community, highlighted by its refusal to work with DNIWA during the termination planning process for the rancherias, opting instead to engage directly with them and establish organized governing bodies. The DOI's position was supported by the actions of DNIWA members, who differentiated their advocacy from the political roles of the rancherias' councils.
The Nation's argument regarding Guschu Hall as a cultural center was undermined by the lack of evidence showing its exclusive use by the Nation. Furthermore, the assertion that the rancherias were artificial constructs of the DOI was countered by the fact that Congress has the authority to recognize tribes. The claim that DNIWA represented the only formal Tolowa entity following the rancherias' termination in the mid-1960s did not establish the Nation as a distinct community, as DNIWA membership was not exclusive to the Nation. Lastly, the Nation also disputed the DOI's findings regarding the lack of community functioning from 1980 to the present.
The Nation experienced significant membership turnover over a short period, with original rolls indicating 130 members in 1983, rising to 338 in 1986, and falling to 166 by 1996, of which only 94 were common with the 1986 list. A portion of the membership decline was due to individuals joining the Smith River Rancheria, but this accounted for only 68 members. By 1996, at least one-third of the Nation's membership was unaccounted for due to reasons unrelated to the Smith River association, and over 40% of the 1996 roll was not on the 1986 list. The Department of the Interior (DOI) concluded that the high turnover indicated a lack of commitment to the Nation. Membership further declined to 102 by 2009, with only 77 members in common with the 1996 roll. As of the Proposed Finding, 88 members were recognized as current. The Nation argued that changes over 30 years are natural and that the DOI failed to consider the broader context of the Tolowa people's history and their diverse village structures. However, without evidence demonstrating social exclusivity among its members, the DOI's findings were upheld. The motion by the DOI was granted, and the Nation's motion denied, reaffirming that there were insufficient grounds for federal recognition. Congress retains the authority to recognize the Tolowa Nation through legislation. The case primarily reflects the DOI's analysis in the Proposed Finding under the prior regulations, as the Final Determination followed without separate reporting.
The Proposed Finding concluded that the Nation did not meet the relaxed criteria for federal recognition under section 83.8 due to a lack of unambiguous prior federal acknowledgment as an Indian tribe, a determination the Nation does not contest. The Nation argues that the Department of the Interior's (DOI) request for additional documentation regarding the status of DNIWA post-1928 was beyond regulatory requirements; however, the regulations permit the Assistant Secretary to provide suggestions during this response period. The Nation also objects to what it views as the DOI's inappropriate application of a "heredity requirement," asserting that "continuity of membership" is not mandated by the regulations. Nevertheless, when assessing compliance with section 83.7(b), the DOI considers whether the ancestors of current members constituted a community; if the current members do not descend from prior community members, the petitioner cannot be viewed as having evolved from or being a continuation of that community.
