Court Tosses Tribal Recognition Bid

(CN) - Failure to file on time torpedoed a "smorgasbord" of claims for tribal status by a group of San Francisco-based Native Americans last recognized by the U.S. government in 1927, a federal judge ruled.

The Muwekma Ohlone Tribe first submitted a letter of intent to petition for federal tribal recognition in 1989. They ultimately filed the formal petition, with thousands of pages of supplemental materials, to the U.S. Department of the Interior in 1995. But, the department rejected the request a year later, and again in 2001, saying that the Muwekma - descendants of the Pleasanton or Verona Band of Alameda County - failed to meet seven mandatory criteria for federal recognition.

The Department of the Interior left the Muwekma out on the first list of federally recognized tribes it published in 1979. By 1994, it had modified the criteria used to acknowledge tribes during the Muwekma's application process.

Specifically, it held that a petitioner must be identified as an American Indian entity on a "substantially continuous" basis since 1900; that a prevalent portion of the petitioning group "must comprise a distinct community and have existed as a community from historical times until the present;" and that membership of the petitioning group "must be composed principally of persons who are not members of any acknowledged North American Indian tribe."

U.S. District Judge Reggie Walton explained that the Department of the Interior rejected the petition because it found that "the Muwekma could only produce one example between 1927 and 1995 where the Muwekma was identified 'as [the entity] that had evolved from the Indian settlement at the Verona station,' and the department concluded that '[o]ne example is not sufficient to meet'" the mandatory criteria.

The Department of the Interior also said that the Muwekma had several opportunities to pursue action against the agency. It said that in 1927, the Muwekma had claimed "the department provided [it with only] a fraction of the federal funding and services allocated to ... Indian tribes." In 1979, the Federal Register did not list Muwekma among a list of entities recognized by the secretary of interior as a tribe. But the Muwekma waited until 1989, another 10 years, to file its intent to petition for federal acknowledgment.

"Of these three dates, the court finds that the most obvious point at which the Muwekma could have first brought suit against the agency for purportedly terminating its tribal status was in 1989, when it was clear that it was aware that it was not a federally-recognized tribe," the 48-page ruling states. "Given that the Muwekma did not bring this action against the department until 2001, approximately 12 years after it undoubtedly possessed knowledge that it lacked acknowledgment by the federal government as a tribe, its unlawful termination of tribal status claim is plainly barred by" the statute of limitations.

As such, Walton agreed with the government that the Muwekma's claim is barred by the statute of limitations, which sets the clock to expire on civil action commenced against the United States "unless the complaint is filed within six years after the right of action first accrues."

Once granted federal recognition, tribes are eligible for economic assistance, land, housing grants and other government benefits.

"Ohlone," alternatively "Costanoan," was a label given to Indians along the Pacific Coast near San Francisco Bay who were concentrated by Spaniards in the 1800s. The group, once said to have more than 10,000 members, fractured into smaller tribes and its numbers plummeted.

In 2000, the Muwekma's enrollment stood at about 400 members.

In total, 10 Native American groups have submitted petitions for tribal status under the Ohlone or Costanoan tribal name, six of which are pending, according to the Washington-based court.

Walton called the Muwekma's six claims - including breach of fiduciary duty, violation of due process, and violation of the Administrative Protection Act and the Equal Protection Clause - a "smorgasbord" and denied the tribe's motion for summary judgment.

"Despite the Muwekma's efforts to raise a smorgasbord of claims in an attempt to reverse the department's final determination, the court finds that there exists no basis upon which it may overturn the agency's findings," he wrote. "Accordingly, the court must grant the department's cross-motion for summary judgment, and deny the Muwekma's motion for summary judgment."

EDITOR'S NOTE: An earlier version of this article incorrectly said that the Muwekma had failed to prove their association with a tribe that was last recognized in 1927. The Muwekma are direct descendants of the Mission San Jose Tribe, also known as the Pleasanton or Verona Band of Alameda County. Courthouse News Service regrets the error.

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