HILLMAN, D.J.
The Nipmuc Nation ("Plaintiff", "Nipmuc Nation" or "Petitioner 69A"), has filed a Petition for Review of a final administrative determination by Secretary Ryan
Summary Judgment is appropriate where, "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Carroll v. Xerox Corp., 294 F.3d 231, 236 (1st Cir. 2002) (citing Fed. R. Civ. P. 56(c)). "`A "genuine" issue is one that could be resolved in favor of either party, and a "material fact" is one that has the potential of affecting the outcome of the case.'" Sensing v. Outback Steakhouse of Florida, LLC, 575 F.3d 145, 152 (1st Cir. 2009) (quoting Calero-Cerezo v. U.S. Dep't. of Justice, 355 F.3d 6, 19 (1st Cir. 2004)).
When considering a motion for summary judgment, the Court construes the record in the light most favorable to the nonmoving party and makes all reasonable inferences in favor thereof. Sensing, 575 F.3d at 153. The moving party bears the burden to demonstrate the absence of a genuine issue of material fact within the record. Id., at 152. "`Once the moving party has pointed to the absence of adequate evidence supporting the nonmoving party's case, the nonmoving party must come forward with facts that show a genuine issue for trial.'" Id. (citation to quoted case omitted). "`[T]he nonmoving party "may not rest upon mere allegations or denials of the [movant's] pleading, but must set forth specific facts showing that there is a genuine issue of material fact as to each issue upon which [s/he] would bear the ultimate burden of proof at trial." Id. (citation to quoted case omitted). The nonmoving party cannot rely on "conclusory allegations" or "improbable inferences". Id.
Where the court is asked to review a decision by the DOI to grant or deny a petitioner's request for federal acknowledgement:
Muwekma Ohlone Tribe v. Salazar, 813 F.Supp.2d 170, 174 (D.D.C. 2011), aff'd, 708 F.3d 209 (D.C. Cir. 2013)(internal citations and citations to quoted authorities omitted)(alterations in original).
The history of southern New England Indians in central Massachusetts, Rhode
Contact between Europeans and Nipmuc Indians began in the early 1600s with the colonization of southern New England. In the 1640s, English colonists established twelve Nipmuc "praying towns" and attempted to convert the Nipmuc to Christianity. Among the praying towns were Hassanamisco (now Grafton, Massachusetts) and Chaubunagungamaug (now Dudley and Webster, Massachusetts). In the 17th century, English colonization of southern New England devastated the Nipmuc and other tribes of the region by spreading diseases for which they had no immunity, and warfare at levels they had not previously experienced. As numbers of English colonists continued to grow, southern New England Indians adopted various strategies for survival, including conversion to Christianity, adoption of English trade practices, goods and culture, and joining the English armed forces in fights against other Indians (with the hope that their cooperation would improve relationships). Southern New England Indians also gave into English pressures to sell their land, which resulted in fragmented tribal lands whereby Indians could not visit one another without trespassing on English land. Tensions between Indians and English escalated to the point of war — the hard-fought, bloody King Philip's War (1675-76). As a result of the war, 40% of the southern New England Indian population was killed. After the war, only a small number of Nipmuc remained in Massachusetts.
After the war, southern New England Indians were sold as slaves and sent to work either in the West Indies or in English households, alongside African slaves. During the 18th century and through to the 20th century, the population of English colonists rose because of high birth rates and economic advantages, while southern New England Indians declined with disease and extreme poverty. Indians continued to face significant challenges to surviving in New England, such as land loss, including losses through fraud committed by colonial officials, guardians and English neighbors. In 1727, Massachusetts allowed white settlers to purchase 7,500 of the 8,000 acres of Hassanamisco lands, and the remaining 500 acres were divided among seven Indian families that resided there. These families were referred to by the Hassanamisco as "proprietary families." The Cisco family, one of the families in Petitioner 69A, owns 2.5 acres of this land,
The perception of being "Indian" also became diluted as a result of two interrelated external forces. The first is the intermixture of Indians and Africans forming families together. Indians interacted with Africans largely because they were enslaved together in English households. The second force is Indian residential mobility. English colonists encroached on Indian land reserves, poached timber and other resources, thus reducing the value Indians could extract from their lands. Other Indians were forced to sell their lands to pay off debts. As a result, southern New England Indians were forced to seek economic opportunities in towns and cities, far away from their traditional homelands. Thus, Indians joined Africans and poor white laborers in the cities.
European officials were able to distinguish Indians as "Indians" until well after the American Revolution. However, by 1800, "Indians" began to disappear from official records; individuals once designated as "Indian," were now designated as "mustee" or "Negroes" or "coloured." By 1800, European officials regarded all southern New England Indians as "black," thereby drawing distinct lines between themselves and all persons of color.
In the mid-1800s, Massachusetts commissioned a report to determine which Indians were within the state, which tribes they were associated with, and where they were. This report, called the
In the 20th century, tribal entities in southern New England bound themselves together in pan-Indian organizations, such as the Indian Council of New England, founded in 1923, in an effort to increase their visibility, preserve and strengthen their traditions, promote intertribal cooperation, and more broadly establish their relationships with American Indians in general. The tribes also gradually became more visible to state and local governments as a distinct political constituency. This led, for example, to formal recognition of the Nipmuc Nation by the Commonwealth of Massachusetts in 1976 in an executive order issued by Governor Dukakis, recognizing that the Tribal Council of Nipmuc was the governing body of the Nipmuc Tribe and ordering state agencies to "deal with ... the Hassanamisco Nipmuc Tribal Council on matters affecting the Nipmuc Tribe."
The Nipmuc Nation currently includes members of documented descent from historic Nipmuc people. A substantial portion of the Nipmuc Nation continues to live in the same geographic area of Central Massachusetts and parts of Rhode Island and Connecticut. Members continue to gather formally and informally, vote in tribal elections, marry other members of the Nipmuc Nation, and participate in annual pow-wows and other tribal events.
On or about April 16, 1980, Zara CiscoeBrough, on behalf of "Nipmuc Tribal Council, Hassanamisco reservation, Grafton, Massachusetts," filed a letter of intent declaring an intent to file a petition with the BIA seeking recognition as an American Indian tribe. In 1984, Plaintiff, through "The Nipmuc Nation Trial Council Federal Recognition Committee," submitted a petition to the DOI, describing itself as descendants from two bands, the Hassanamisco and Chaubunagungamaug. Plaintiff
Defendants evaluated Plaintiff's (Petitioner 69A's) petition for federal acknowledgment under 25 C.F.R. Part 83 (1994). On January 19, 2001, acting Assistant Secretary-Indian Affairs ("AS-IA") Michael Anderson signed and issued a Proposed Finding in favor of acknowledgment for the Nipmuc Nation. The Proposed Finding in favor of acknowledgment was not published in the Federal Register, as required by applicable regulations. On September 25, 2001, AS-IA Neal A. McCaleb signed and issued a 219 page Proposed Finding against acknowledgment for the Nipmuc Nation (the "PF"). The PF was issued without notice to the Plaintiff and without any additional information or evidence than was before the DOI when AS-IA Michael Anderson signed and issued the unpublished Proposed Finding in favor of acknowledgment.
On October 1, 2001, the PF against acknowledgment was published in the Federal Register. On January 23, 2002, a formal technical assistance meeting took place, with representatives of the Nipmuc Nation, the BIA and other third parties present. The stated purpose of technical assistance was for assistance to petitioners and "to ensure that the petitioner presents the strongest case possible and is not turned down for technical reasons." During the January 23, 2002 formal technical assistance meeting, the Nipmuc Nation inquired as to the status of requests for further technical assistance. The BIA indicated that the request for further technical assistance was a matter of scheduling. The Nipmuc Nation inquired as to further field research visits. The BIA said "[q]uite frankly, I don't think so." The Nipmuc Nation asked whether the BIA was going to bring on an anthropologist to evaluate its response. The BIA answered affirmatively and did not deny that this person would be someone "who hasn't made any field visits to the petitioner." No further technical assistance of any kind, formal or informal, interviews or field research visits were conducted after the January 23, 2002 formal technical assistance meeting.
On June 18, 2004, Principal Deputy ASIA Aurene Martin issued the Final Determination against Federal Acknowledgment of the Nipmuc Nation ("FD"). Like the PF, the FD determined that the Nipmuc Nation did not meet four of the seven mandatory criteria for acknowledgement under 25 CFR §§ 83.7(a)-(f). More specifically, the FD found that Nipmuc Nation failed to meet the following criteria: § 83. 7(a)(the petitioning group has been identified as an American Indian entity on a substantially continuous basis since 1900); § 83.7(b)(a predominate portion of the petitioning group comprises a distinct community from historical time until present); § 83.7(c)(the petitioning group has maintained tribal political influence or authority over its members as an autonomous entity throughout history); and § 83.7(e)(the petitioning group's membership consists of individuals who descend from historical
The specific findings regarding those criteria which Defendants found Plaintiff failed to meet are summarized below.
On June 25, 2004, the FD was published in the Federal Register. A panel of administrative law judges within the DOI affirmed the FD on September 4, 2007. The panel of administrative law judges referred certain identified issues for consideration by the Secretary of the Interior. On January 28, 2008, the Nipmuc Nation was advised that the Secretary declined to exercise his discretion to direct additional reconsideration by the Assistant Secretary.
In 1978, the DOI promulgated regulations establishing a uniform procedure for "acknowledging" American Indian Tribes. See 25 C.F.R. § 83.1 et seq. The DOI adopted comprehensive regulations that govern its decisions concerning tribal status as set out in 25 C.F.R. Part 83 (the "acknowledgment regulations"), which established procedures by which the DOI acknowledges that certain Indian groups exist as "tribes." Id. § 83.2 Recognition "is intended to apply to groups that can establish a substantially continuous tribal existence and which have functioned as autonomous entities throughout history until the present." Id. § 83.3(a). The DOI, through the BIA applies its expertise to this determination. Robinson v. Salazar, 838 F.Supp.2d 1006, 1029 (E.D. Cal. 2012). A group such as Nipmuc Nation seeking recognition as a tribe entitled to "acknowledgment" must satisfy seven criteria:
25 C.F.R. § 83.7.
Muwekma Ohlone Tribe, 813 F.Supp.2d at 174.
As required, Nipmuc Nation applied for acknowledgment by filing a "documented petition" which contained explanations and supporting documentation it contended demonstrated that it meets these seven mandatory criteria. A petition is reviewed in accordance with the procedural requirements set forth in the acknowledgement regulations, as summarized below.
Shinnecock Indian Nation v. Kempthorne, No. 06-CV-5013 JFB ARL, 2008 WL 4455599, at *5 (E.D.N.Y. Sept. 30, 2008)(emphasis added)(internal citations omitted).
The Nipmuc Nation asserts that in reaching the FD, the Defendants either did not follow this process, or did not act in accordance with the regulations. More specifically, it alleges that the Defendants: (1) acted arbitrarily and capriciously, and have abused their discretion, by wrongfully defining who is and who is not a member of the Nipmuc Nation and then finding that Nipmuc Nation's evidence did not satisfy its manufactured definition; (2) abused their discretion and violated due process when they failed to provide assistance in the technical assistance meeting by affirming facts in that meeting that it rejected in the FD and did not respond to Nipmuc Nation's requests for further assistance; (3) abused their discretion and violated due process when Defendants, without legal authority or any additional evidence, reversed its preliminary positive finding for acknowledgment and issued a preliminary negative finding; and (4) failed to apply federal law and regulations as to Nipmuc Nation in the same or similar manner that it has applied such laws and regulations to other petitioning tribes.
The Nipmuc Nation, which for purposes of the immediate discussion I will refer to either as Plaintiff or Petitioner 69A, asserts that the Defendants usurped its right to define for itself the entity on behalf of which it sought federal acknowledgment as an Indian tribe. Instead, it argues, the Defendants imposed their own definition of the "Nipmuc Nation" and found that Petitioner 69A failed to meet the acknowledgement criteria based on that definition. More specifically, in its letter of intent, Plaintiff initially identified the Nipmuc Tribal Council, "an elected body which acts on behalf of the Nipmuc Indian people" which would be seeking to petition the BIA for recognition as an American Indian tribe. The Nipmuc Tribal Council provided the following address information for the elected body: "Hassanamisco Reservation, Grafton, Massachusetts."
Plaintiff alleges that it repeatedly attempted to correct what it saw to be a misconception by the Defendants regarding the identity of the petitioning entity. On numerous occasions, Plaintiff, through the Nipmuc Tribal Council, apprised the Defendants that Petitioner 69A represented all members of Nipmuc Nation, including not only the Hassanamisco Band, but also members from Dudley-Webster, Natick, and Quinsigamond in Massachusetts, and members of various Connecticut bands. Plaintiff contends that Defendants failure to acknowledge a broader definition of who constituted Petitioner 69A led to crucial errors in their analysis and resulted in the Defendants determining that they failed to meet four of the required criterion. However, based on the record before me, which includes the Plaintiff's letter of intent and Petition, I cannot find that the Defendants improperly defined the group that comprised "Petitioner 69A.
Plaintiff further argues that once the Defendants identified it (i.e., Petitioner
Pursuant to Section 83.7(a), a petitioner demonstrate it has been identified by external sources as an American Indian entity on a substantially continuous basis since 1900. To satisfy the criterion, an identification: (1) must be of the petitioner; (2) must be of an entity; (3) the entity must be described as American Indian; and (4) the identifications must be on a substantially continuous basis. Additionally, the regulation requires that the identification be "by other than the petitioner itself or its members." 25 C.F.R. § 83.7(a). Following is a summary of Defendants' findings.
In determining that the Plaintiff did not meet this criterion, the Defendants concluded that the evidence in the record "does not include continuous external identifications of a Hassanamisco Nipmuc entity broader than the Hassanamisco proprietary descendants for the period 1900-1979." That is, the seven Indian families to whom the Hassanamisco lands were transferred in 1727. The Defendants found that an external identification of this Hassanamisco entity does not equate to an identification of Petitioner 69A because the Hassanamisco descendants constitute only 11 of Petitioner 69A's members. Moreover, the Defendants found that from 1900 through 1979, the majority of the external identifications only referred to the Sisco family property which constitutes the Hassanamisco Reservation and some of its residences, while other external identifiers referred to named descendants of other Hassanamisco proprietary families. However, other than the Sisco family none of these families were members of Petitioner 69A. Defendants further found that there were external identifications of occasional associations of Dudley/Webster Nipmuc descendants with Hassanamisco during the relevant period, however, such associations "occurred primarily in the context of pan-Indian activities in New England rather than being identifications of an Indian entity which is antecedent" to Petitioner 69A. In their FD, Defendants found that the evidence established that external identifications of an entity comprised of various Indian groups who are members of Petitioner 69A existed only from the mid-1970s to the present. The FD concluded that the ancestors of the large majority of Petitioner 69A's members were not part of the Hassanamisco entity which external observers identified during the relevant period, and were not separately identified as an Indian entity. Defendants, therefore, concluded that Petitioner 69A did not meet the requirements of criterion Section 83.7(a).
First, I find that the Defendants properly applied the regulation and did not impose a higher burden of proof on it than was required. The Defendants found that
Section 83.7(b) requires that a predominate portion of the petitioning group be comprised of a distinct community from historical time until present. Plaintiff asserts that Defendants' decision denying that it met this criterion was arbitrary and capricious because their "Hassanamisco-centric focus" caused them to exclude evidence relating to non-Hassanamisco Nipmuc which would have supported a finding of the existence of a distinct community during the relevant period. More specifically, Plaintiff contends that the Defendants did not consider the off-reservation Nipmuc families and Wabbaquassett and Hatchet Pond communities after initially agreeing that they would be considered Nipmuc communities.
Under the regulations, a combination of evidence which may satisfy this criterion includes: significant rates of marriage within the group, significant social relationships connecting individual members, and significant rates of informal social interaction broadly among the members of the group. 25 CFR § 83.7(b)(1). Additionally, the petitioner may demonstrate community by establishing that 50% of the members reside in a geographic concentration within an area exclusively or almost exclusively composed of members of the group, or 50% of the members maintain distinct cultural patterns, such as language, or kinship organization. 25 C.F.R. § 83.7(b)(2). The FD sets forth a comprehensive analysis as to why the Defendants found that Plaintiff failed to satisfy this criterion, which is summarized as follows.
The evidence established a limited community of some of the descendants of the original Hassanamisco proprietary families from 1785-1869 and from 1869 through the early 1950s. The FD goes on to outline some tenuous and limited ties between the original Hassanamisco proprietary families. However, the contacts were intermittent and the focal point of the community was in Worcester, Massachusetts, not the Hassanamisco Reservation in Grafton (although the reservation remained an important symbol). The Defendants found that the record evidence showed that most of Petitioner 69A's ancestors were not associated with the Hassanamisco descendants focused in the Worcester area, nor were they documented to be interacting with each other elsewhere. The Defendants summarized other interactions/associations between members of Petitioner 69A and found that they either took place only in the context of pan-Indian organizations (rather than a community context), are not documented to have associated with Hassanamisco by the 1920s (and in fact, did not have significant interaction until the 1960s and 1970s), and the continuous contact between the "attenuated" Worcester based community and the Hassanamisco ceased to exist in the 1950s. Thereafter, the descendants of the Worcester based community did not become part of Petitioner 69A until it greatly expanded its membership in the 1990s. Ultimately, the Defendants concluded that of the original Hassanamisco proprietary families, the only one that has continued to function continuously within Petitioner 69A and its immediate antecedents since the 1950 is
Plaintiff does not challenge the Defendants' specific findings. Instead, Plaintiff asserts that Defendants' decision was arbitrary and capricious because they failed to consider evidence of the off-reservation Nipmuc families and Wabbaquasset after initially agreeing (in the technical assistance meeting) that they would be considered Nipmuc communities. Plaintiff also contends that Defendants decision was arbitrary and capricious because in the FD, they required Plaintiff to provide actual interaction between specific individuals and disregarded positive evidence of interactions, which although they may have been thin or distant, established connections which would support a finding of community. Plaintiff further contend that Defendants disregarded prior precedent and provided no intelligible analysis for doing so.
Defendants point out that while not expressly stating that they were considering the Wabbaquasset, the FD refers to off-reservation Nipmuc families. Moreover, even if the Defendants did not consider these other families, Plaintiff does not specify how consideration of them would have altered the Defendants' analysis. I do not find that Defendants have ignored prior precedent, rather, the Defendants cited precedent more relevant to this case.
Plaintiff makes a further argument that the Defendants' decision was arbitrary and capricious because they failed to provide it with the necessary assistance at the technical assistance meeting and/or misled it regarding what additional evidence would be necessary to satisfy this criterion. Leaving aside this contention, which I will discuss later in this opinion, I cannot find that the Defendants' decision, based on the record evidence, was arbitrary or capricious.
Section 83.7(c) requires that the petitioning group establish that it has maintained tribal political influence or authority over its members as an autonomous entity throughout history. The regulation lists the following factors:
25 C.F.R. § 83.7(c). The Defendants findings in support of their conclusion that Plaintiff failed to meet this criterion are summarized below.
"[T]he evidence does not indicate that political influence and authority existed within a Hassanamisco entity between 1785 and 1900 at a level sufficient to meet [this] criterion." More specifically, the community that existed among the Hassanamisco proprietary descendants during the periods from 1785 through 1869 and from 1869 to 1900 was not a sufficiently high level to provide carry-over evidence under this criterion. Additionally, the Defendants found that the major components or families antecedent to Petitioner 69A, i.e., the Dudley/Webster and Curliss/Vickers descendants, were not associated with Hassanamisco when the tribe was identified in the Earl Report in 1861 and have not been shown to have melded with all or part of the Hassanamisco after 1861 and prior to 1900. Therefore, Petitioner 69A does not meet this criterion prior to 1900. From 1900-1961, no Hassanamisco tribal community that included the majority of ancestors of Petitioner 69A existed in any definable sense. Through the late 1950s, there was a tenuous community of descendants of some of the Hassanamisco proprietary families who maintained a connection with each other and maintained a public identity with the Hassanamisco reservation. The Sisco family held a place of prominence, but did not maintain a "bilateral political relationship" with other proprietary descendants or with the larger group of Dudley/Webster and Curliss/Vickers descendants which are antecedent to most of Petitioner 69A's membership. Most of the political events and activities relied on by Petitioner 69A took place from the 1920s-1950s in the context of pan-Indian organizations in New England and the leaders of these organizations did not exercise political authority or influence over people who were part of the 1920s community, as defined by Petitioner 69A. There is no evidence that ancestors of most members of Petitioner 69A belonged to such organizations, and the majority of the people who were in such organizations do not have descendants in Petitioner 69A, "[t]hus, they did not provide a venue for any bilateral political relationship among leaders and followers antecedent to [P]etitioner 69A." From 1978-1996, there is scant evidence to show a connection between
Plaintiff asserts that the Defendants ignored the listed factors when making its determination. However, as to the factors set forth in Section 83.7(c)(1)(i)-(v), the regulation states that this "criterion may be demonstrated by some combination of the evidence listed below and/or by other evidence that the petitioner meets the definition of political influence or authority". Id. Therefore, while informative, these factors are not mandatory. The Defendants' failure to consider all of these factors or to analyze any piece of evidence with respect to any of them does not render the Defendants' decision arbitrary and capricious. Section 83.7(c)(2) provides that "[a] petitioning group shall be considered to have provided sufficient evidence to demonstrate the exercise of political influence or authority at a given point in time by demonstrating that group leaders and/or other mechanisms exist or existed which" satisfy four specified factors. The Defendants' comprehensive analyses did consider whether Plaintiff had satisfied any of these factors.
The Plaintiff also argues that the Defendants mischaracterized the evidence presented without properly assessing the factors. One of the primary examples cited by the Plaintiff is the Defendants' alleged failure to properly consider a 1907 letter from Sarah M. Cisco to the President of the United States. The letter is lost, but the response from the Office of Indian Affairs ("OIA") still exists. OIA states that it was responding to Ms. Cisco's letter "concerning
Plaintiff also asserts that the Defendants mistreated oral evidence which it presented. More specifically, Plaintiff asserts that it had produced oral evidence of annual fairs, tribal meetings, and "regular business meeting" which occurred approximately every three months among tribal members. The Defendants gave little weight to such evidence because there was "no minutes, newspaper articles, letters... or other contemporary primary evidence showing their occurrence or indicating who attended them." But Defendants did consider the evidence. That it ascribed it a lesser weight because there was no contemporaneous corroborating evidence, particularly given the indefinite nature of some of the oral recollections, was not arbitrary or capricious. Under the circumstances, I cannot find that the Defendants' determination based on the record evidence was arbitrary or capricious.
Section 83.7(e) requires that the petitioning group's membership consists of individuals who descend from historical tribes which combined and functioned as a single autonomous entity. Generally, the Defendants concluded that there was no amalgam by which two tribes combined and functioned as a single autonomous political entity. The Defendants findings in the FD are summarized below.
For the FD, Petitioner 69A defined the requisite "historic Nipmuc tribe" as the "individuals and families of Nipmuc and other Indian ancestry who were part of the Hassanamisco tribal community by the 1920s." The community included their ancestors, living in the 1920s, who descended from the Dudley Indians and Miscellaneous Indians identified in the Earle Report, Connecticut Indians, or descended from a few other Indian ancestors living in the 1920s, as well as their ancestors living the in the 1920s who descended from the Hassanamisco Indians identified in the Earle Report. However, the Defendants found that the evidence did not support a finding that that such a coalesced entity existed by the 1920s. Instead, the Defendants found that Dudley/Webster Indians and the Hassanamisco Indians were separate tribes which never combined historically.
The Defendants determined that the evidence demonstrates that 2% of Petitioner 69A's membership (11 of 526) had documented descent from the ancestry of the Arnold/Sisco family that were part of the historical Hassanamisco/Grafton Nipmuc tribe identified in 1861. The evidence further
Plaintiff asserts that the Defendants "conflated" the word "community" as understood in the regulations with the term as used by Petitioner 69A to describe its historical tribe. Consequently, Defendants relied on their conclusions under Sections 83.7(a), 83.7(b) and 83.7 (c) in making their determination that there is no "Hassanamisco tribal community." Plaintiff also asserts that it was inappropriate for the Defendants to rely on the Earle Report to define who is and is not a Hassanamisco or Dudley/Webster given that it was prepared by a non-Indian, and that it assumes the labels "Hassanamisco" and "Dudley/Webster" are the correct labels to be used. This is important given that Plaintiff takes the position that the Hassanamisco and Dudley/Webster tribes as defined by the Defendants are not the entities on whose behalf Petitioner 69A sought federal acknowledgement. Plaintiff contends that Petitioner 69A originally defined itself as one historical tribe consisting of multiple bands joining together at the Hassanamisco Reservation. Plaintiff asserts that Defendants created two separate and distinct tribes, which triggered the criterion's amalgamation requirement. The Defendants then determined that the two tribes had not amalgamated and therefore, declined to combine together the number of Hassanamisco and Dudley/Webster descendants. Plaintiff additionally argues that its members who descend from Mary (Curliss) Vickers, one of the "Miscellaneous" Indians the Earle Report found resided in Massachusetts, should be considered Nipmuc descendants to raise the percent of Plaintiff's members who descend from a "historical tribe" to satisfy the 80% requirement. Plaintiff contends that rather than recognize the 177 members as having Nipmuc descent, the Defendants arbitrarily imposed another requirement on Petitioner 69A to establish tribal relations, which is not required by the regulations. Plaintiff contends that had all combined descendants been properly included, 88.6% of Petitioner 69A's members having documented Nipmuc descent which would have been high enough to satisfy this criterion.
Plaintiff further challenges the Defendants as arbitrary and capricious on the grounds that Defendants mislead Petitioner 69A at the technical assistance meeting, At that meeting Defendants confirmed that in order to meet this criterion, Petitioner 69A would have to establish that at least 80% of its members were descended from a historic Indian tribe — the PF had found that only 54% of Petitioner 69A's members were descended from a historical tribe. After consulting with the Defendants, Petitioner 69A attempted to meet the 80% threshold by culling its membership roll from 1,602 to 526 in order that it would "more accurately reflect the Hassanamisco tribal community as it has developed through time." Although the family
I agree with the Plaintiff that the Defendants' conclusion in the FD that only 2% of the membership roll of Petitioner 69A has documented Nipmuc descent was unforeseen considering that in the PF, the Defendants concluded that 54% of the then membership roll of Petitioner 69A descended from a historic Indian tribe — particularly given that in response to discussions in the technical assistance meeting, Petitioner 69A culled its membership roll in an attempt to increase the percentage of individuals with documented Nipmuc descent. I am troubled by the Defendants' conclusion that the Hassanamisco and Dudley/Webster were not amalgamated and therefore, would not be considered as a single historic tribe. More troubling is the conclusion that the Curliss/Vickers line of descendants should not be included for purposes of determining whether Petitioner 69A meets this criterion. Nevertheless, in the FD the Defendants provide a detailed analyses regarding the various families (including the Curliss/Vickers' line of descendants), their connections and their affiliations. While this is a much closer call, I cannot find Defendants' decision, based on the evidence, was arbitrary and capricious. At the same time, Plaintiff's primary argument with respect to this criterion focuses on the Defendants' alleged failure to provide technical assistance with respect thereto, as required, under the regulations. I will now address this argument.
I have found that based on the record evidence, the Defendants' finding that Plaintiff failed to meet the Section 83.7(a)-(c) and (e) criterion. However, Plaintiff asserts that because the Defendants failed to provide it with adequate assistance at the technical assistance meeting, mislead it about whether additional evidence was necessary, and/or misled it about whether it had sufficient evidence to satisfy the criterion, the FD was arbitrary and capricious and must be vacated.
The regulations provide that the Defendants, "if requested by the petitioner or any interested party, hold a formal meeting for the purpose of inquiring into the reasoning, analyses, and factual bases for the proposed finding. The proceedings of this meeting shall be on the record. The meeting record shall be available to any participating party and become part of the record considered by [them] in reaching a final determination." 25 C.F.R. § 83.10. The purpose of such meeting is to ensure that the petitioner presents the strongest case possible for federal acknowledgment. After the PF was issued on September 25, 2001, Plaintiff requested a formal technical assistance meeting, which took place on January 23, 2002. Defendants provided advice as to how Plaintiff could improve and strengthen its petition materials, and Plaintiff relied on that advice. However, Plaintiff has summarized numerous instances where the Defendants did not consider evidence which they suggested would strengthen Plaintiff's petition. In other instances, Defendants expressly or inherently assured Plaintiff that no further evidence
Essentially, Plaintiff is arguing that I should find that the Defendants did not provide it with adequate technical assistance and, as a result, it was not able to present, or was discouraged from presenting, substantial evidence which would be important to the success of its petition. I will assume that if I made such a finding, it would follow that Defendants' failure to render adequate assistance to the Plaintiff rendered their finding against federal acknowledgement arbitrary and capricious.
Plaintiff makes one last argument in support of its contention that Defendants' determination was made in contravention of required regulations and administrative procedures (and therefore, in violation of the Fifth Amendment's guarantee of procedural due process): that Defendants refusal to publish the original positive proposed finding in favor of federal acknowledgment in the Federal Register, as required, and their subsequent reversal of that proposed finding and issuance of the negative proposed finding in the PF (which ultimately resulted in the negative FD) without any additional evidence was arbitrary and capricious,
There is a fundamental problem with Plaintiff's argument — I do not find that the positive proposed finding was a binding, official statement by the DOI. Instead, I agree with the Defendants that it is akin to a draft finding as it was never reviewed by the Solicitors Office, and never published in the Federal Register, as required under the regulations. See 25 C.F.R. § 83.10(h) (1994)(within one year after notifying the petitioner that active consideration of the documented petition has begun, the AS-IA shall public proposed findings in the Federal)
For the reasons set forth above, I find that Defendants' determination that Plaintiff failed to satisfy the requisite criterion for federal acknowledgment was not arbitrary or capricious. Additionally, I do not find that either the procedure utilized by the Defendants, or their decision denying Plaintiff federal acknowledgment deprived the Plaintiff of its Fifth Amendment right to due process. Accordingly, judgment shall enter for the Defendants.
1. Plaintiff's motion for summary judgment (Docket No. 33), is
2. Federal Defendants' Motion for Summary Judgment (Docket No. 40) is
California Valley Miwok Tribe v. Zinke, No. CV21601345WBSCKD, 2017 WL 2379945, at *4 (E.D. Cal. June 1, 2017).
While I denied the Defendants' motion to strike the affidavits from the record, I do not find that Plaintiff has established that any of the exceptions apply. Therefore, while I have included some of the facts contained in these affidavits to flesh out some of the historical background, I have not considered them for purposes of determining whether the Defendants' FD was arbitrary or capricious. That determination shall be based solely on the administrative record.
