Judge sides with Chinook, calls 2015 BIA federal recognition rule ‘draconian’ by Frank Hopper
“Federal recognition affords important rights and protections to Indian tribes, including limited sovereign immunity, powers of self-government, the right to control the lands held in trust for them by the federal government, and the right to apply for a number of federal services.” Kahawaiolaa v. Norton, 386 F.3d 1271, 1273 (9th Cir. 2004), cited in Friday’s federal court ruling.
In a major victory for the Chinook Indian Nation, a federal judge ruled in their favor on Friday, stating the tribe should be allowed to re-petition the Bureau of Indian Affairs for federal recognition. Judge Ronald Leighton called a BIA rule preventing the tribe from re-petitioning “draconian.” He remanded it back to the BIA for further evaluation.
Judge Leighton’s ruling came after a hearing at the federal courthouse in Tacoma on January 6. At issue was the BIA’s Revisions to Regulations on Federal Acknowledgment of Indian Tribes (25 CFR 83 or Part 83), which were adopted by the bureau in 2015.
Related article: Chinook Tribe Seeks Federal Recognition
These 2015 revisions changed the criteria for gaining federal recognition, making it easier for tribes to qualify. But the revisions also kept a ban in place that prevents tribes from re-petitioning after previously being rejected.
Attorneys for the tribe argued the criteria used to revoke the Chinook’s federal recognition in 2002 were eased up in 2015. For example, now they only need to prove their existence from 1900 to the present, instead of “from historical times to the present” and they can now use official tribal rolls as evidence of their existence instead of only U.S. government rolls.
But the revisions kept a 1994 ban on re-petitioning in place that prevents the Chinook from resubmitting their petition even though the new criteria make it likely they would be approved.
Judge calls BS on BIA
Judge Leighton’s ruling calls out the BIA on the questionable reasons it gives for the ban. The bureau states allowing tribes to resubmit petitions after they have previously been turned down will clog the system and will be unfair to tribes whose petitions have not yet been evaluated, making them wait even longer than normal for a decision.
But in his ruling Judge Leighton points out there are currently only five tribes with petitions in the active evaluation process, according to BIA records. He notes that the number of tribes that could potentially re-petition is small and that reevaluating only the relevant parts would be much quicker than reevaluating an entirely new petition. He also notes the BIA could easily give priority to new petitions over re-petitions:
“If DOI [Department of the Interior] was concerned about pending petitions,” Judge Leighton writes, “it would have been simple to give them priority. Furthermore, when re-petitions finally were addressed, OFA [Office of Federal Acknowledgement] would only have to reconsider the aspects of the original decision that were identified as erroneous. This task would surely take less time than deciding a whole new petition. In short, the re-petition ban exception would only be detrimental to existing petitioners if DOI designed it to be.”
Chinook tribal members and their supporters sing ancestral songs in the rain outside the federal courthouse in Tacoma. (Photo by Frank Hopper)
Judge faces courtroom full of Indians
About 70 Chinook tribal members as well as members of many other tribes and non-Native allies met next to the courthouse prior to the hearing last Monday. They sang and drummed and marched to the front of the courthouse.
Chinook Tribal Chairman Tony Johnson was briefly choked up with emotions at the rally prior to the hearing when he spoke about the importance of their fight for federal acknowledgement. His father, Gary Johnson, was the tribal chairman when the Chinook had its federal recognition revoked in 2002.
The circle of Chinook and their allies stood outside the courthouse and sang ancestral songs and played handmade leather drums as the rain drenched them. No one seemed to mind.
“If you think this is bad,” Johnson told the group, “just remember all the suffering our ancestors went through in the past.”
At 3 p.m. the circle of supporters filed through the security screening post and filled the courtroom. Among them was Ken Workman, fourth-generation grandson of Chief Seattle, whose tribe, the Duwamish, also had its federal recognition revoked due to a situation similar to the Chinook.
Observers at the hearing noted how Judge Leighton appeared sympathetic to the tribe. Many felt the songs and prayers, which he probably couldn't hear inside the courthouse, nevertheless softened his heart.
How the BIA will respond to Judge Leighton's ruling is unknown.
The fight for federal recognition of the Chinook and the Duwamish Tribes is the subject of a beautiful documentary called “Promised Land,” which is regularly shown at community screenings.
Frank Hopper is a Tlingit freelance writer, born in Juneau, Alaska, and raised in Seattle. He now lives in Tacoma.