Case 2:08-cv-00717-JCC Document 74 Filed 07/27/12 Page 1 of 25

1 Honorable John C. Coughenour 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF 7 AT

8 CECILE HANSEN, in her capacity as Chairwoman of the Duwamish Tribe, and the 9 DUWAMISH TRIBE, No. C08-0717-JCC 10 Plaintiffs, AMICUS TRIBE’S MEMORANDUM IN 11 v. SUPPORT OF FEDERAL DEFENDANTS’ MOTION FOR 12 KEN SALAZAR, Secretary of the Interior; SUMMARY JUDGMENT AND LARRY ECHO HAWK, Assistant Secretary OPPOSITION TO PLAINTIFFS’ 13 of the Interior for Indian Affairs, THE MOTION FOR PARTIAL UNITED STATES DEPARTMENT OF THE SUMMARY JUDGMENT ON 14 INTERIOR, BUREAU OF INDIAN FIRST CAUSE OF ACTION AFFAIRS, OFFICE OF FEDERAL 15 ACKNOWLEDGMENT, and the UNITED 16 STATES OF AMERICA, 17 Defendants. 18 19 The Muckleshoot Indian Tribe submits this memorandum in support of the federal

20 defendants’ decision declining to recognize the self-described Duwamish Tribe as an Indian tribe 21 and as the political successor in interest to the historic Duwamish Tribe.1 22 I. INTRODUCTION 23 24 Tribal status is a political, rather than a racial classification. Morton v. Mancari, 417 U.S. 25 535, 553 (1974). The regulations governing acknowledgment of groups claiming to be presently 26 1The use of the words “Duwamish” or “tribe” to identify the Duwamish plaintiff is not intended to indicate 27 that the plaintiff is either a presently existing Indian tribe or a successor in interest to the historic Duwamish Tribe. See, United States v. Washington, 476 F.Supp. 1101, 1104 n. 1 (W.D. Wash. 1979). 28 MUCKLESHOOT MEMO IN SUPPORT OF DEFENDANTS’ Office of the Tribal Attorney Muckleshoot Indian Tribe MOTION FOR SUMMARY JUDGMENT – Page 1 39015 - 172nd Avenue SE Auburn, WA 98092 (253) 939-3311 Case 2:08-cv-00717-JCC Document 74 Filed 07/27/12 Page 2 of 25

1 existing Indian tribes distinguish between groups who have maintained the political 2 characteristics of an Indian tribe and voluntary associations, who although perhaps sharing 3 common descent from a historic tribe, have not remained a tribal political entity. In the case 4 before the Court, the record supports the Department of the Interior’s decision that the Duwamish 5 6 plaintiff is not a tribe in the political sense required by the regulations, even though it may be

7 composed of individuals who are descended in some measure from the historic Duwamish Tribe. 8 The Department’s conclusion is consistent with the decision of this Court in United States v. 9 Washington which also found that the Duwamish plaintiff and its members “do not and have not 10 lived as a continuous separate, distinct and cohesive Indian cultural or political community [and 11 12 that its] members have no common bond of residence or association other than such association

13 as is attributable to the fact of their voluntary affiliation with [the Duwamish group.]” United 14 States v. Washington, 476 F.Supp. 1101, 1105, affirmed, 641 F.2d 1368, 1373 (9th Cir. 1981), 15 cert. denied, 454 U.S. 1143 (1982); ACR-PFD-V001-D0012 at 9.23 16 17 A. The Nature of Indian Tribes as Political Communities 18 In Cherokee Nation v. Georgia, 30 U.S. 1 (1831), Chief Justice John Marshall,

19 characterized Indian tribes, as “domestic dependent nations” finding them to be “distinct political 20 societ[ies] separated from others, capable of managing [their] own affairs and governing 21 [themselves] . . .” 30 U.S. at 16-17. A year later Chief Justice Marshall wrote that the United 22 23 States had recognized, “the several Indian nations as distinct political communities, having

24 2Page citations herein are to the record pagination, rather than the original document pagination where they differ. 25 3Excerpts of relevant portions of the Administrative Record cited in this Memorandum are attached to the 26 accompanying Declaration of Richard Reich, with the exception of the Proposed Finding with its supporting Technical Reports (ADD-PFD-V001-D0001 through D0006), Final Determination (ADD-FDD-V001-D0001), and 27 related Federal Register Notices (ADD-PFD-V001-D0008 and ADD-FDD-V001-D0003) which amicus understands will be filed in their entirety in connection with federal defendants’ motion. 28 MUCKLESHOOT MEMO IN SUPPORT OF DEFENDANTS’ Office of the Tribal Attorney Muckleshoot Indian Tribe MOTION FOR SUMMARY JUDGMENT – Page 2 39015 - 172nd Avenue SE Auburn, WA 98092 (253) 939-3311 Case 2:08-cv-00717-JCC Document 74 Filed 07/27/12 Page 3 of 25

1 territorial boundaries, within which their authority is exclusive . . .” Worcester v. Georgia, 31 2 U.S. 515, 557 (1832). (Emphasis added.) These and other cases stand for the proposition that 3 “Indian tribes ... are a good deal more than ‘private voluntary organizations.’” U. S. v. Mazurie, 4 419 U.S. 544, 557 (1975). 5 6 The principles of tribal sovereignty first enunciated by Chief Justice Marshall have

7 evolved over time. See e.g, New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 331-32 8 (1983). Nevertheless tribes continue to retain important attributes of sovereignty, including: 1) 9 “the right . . . to make their own laws and be ruled by them” absent federal law to the contrary, 10 Williams v. Lee, 358 U.S. 217, 220 (1959); 2) the right to impose criminal sanctions on member 11 12 and nonmember Indians violating tribal laws, United States v. Lara, 541 U.S. 193 (2004); and, 3)

13 with few exceptions freedom from state regulation and taxation of on-reservation activities. See, 14 California v. Cabazon Band of Mission Indians, 480 U.S. 202, 214-16 (1987); McClanahan v. 15 Arizona State Tax Comm'n, 411 U.S. 164, 170-171 (1973). Federal recognition of a group as an 16 17 Indian tribe affirms that the group claiming tribal status possesses these and other attributes of 18 sovereign governmental authority. See, F. Cohen, Handbook of Federal Indian Law 138-39

19 (2005 ed.). 20 B. Federal Recognition and the Promulgation of the Acknowledgment Regulations 21 Until the 20th Century, federal recognition of tribal status was generally accorded through 22 23 political acts such as treaties, statutes, ratified agreements, and executive orders. Id. at 143. The 24 passage of the Indian Reorganization Act in 1934 (“IRA”), required the Department of the

25 Interior to make administrative determinations regarding tribal recognition in connection with 26 tribal organization under the IRA. Id. at 149-52. Other federal statutes providing benefits to 27 28 MUCKLESHOOT MEMO IN SUPPORT OF DEFENDANTS’ Office of the Tribal Attorney Muckleshoot Indian Tribe MOTION FOR SUMMARY JUDGMENT – Page 3 39015 - 172nd Avenue SE Auburn, WA 98092 (253) 939-3311 Case 2:08-cv-00717-JCC Document 74 Filed 07/27/12 Page 4 of 25

1 tribes and their members have also required departmental determinations of tribal status to 2 establish eligibility. Id. at 153-54. 3 In 1978 in response to an increase in the number of groups seeking tribal recognition the 4 Department of the Interior sought to formalize its decision making process by adopting 5 6 regulations governing federal acknowledgment.45 43 FR 23743 (June 1, 1978). The regulations

7 seek to distinguish between groups of Indian descendants who have not maintained tribal 8 relations, and those groups that have retained sufficient social and political cohesion through 9 time to have maintained their status as functioning political communities retaining some aspects 10 of their aboriginal sovereignty. Describing the proposed regulations, the Department stated: 11 12 While there is a large number of American citizens who are of Indian descent in this country, many of them do not and have not ever lived in tribal relations. A group of 13 Indian descendants, living in the same general region, does not necessarily constitute an 14 Indian tribe, even though the individuals may have recently joined together in some formal organization such as a corporation. Under the regulations as proposed, the 15 Assistant Secretary – Indian Affairs would acknowledge only those Indian tribes whose members and their ancestors existed in tribal relations since aboriginal times and have 16 retained some aspect of their aboriginal sovereignty. 17 . . . 18 The Department must be assured of the tribal character of the petitioner before the group is acknowledged. Although petitioners must be American Indians, groups of 19 descendants will not be acknowledged solely on a racial basis. 20 43 F.R. 23743, 23744 (June 1, 1978). The Department reiterated the fundamental distinction the 21 regulations make between groups of Indians sharing a common heritage and tribes as political 22 23 4The 1978 acknowledgment regulations were originally promulgated as 25 C.F.R. Part 54. See, 43 FR 24 39361 (Sept. 5, 1978). They were later redesignated without change as 25 C.F.R. Part 83. 47 F.R. 13327 (Mar. 30, 1982). The regulations were amended in 1994 to clarify the criteria for acknowledgment and type of evidence 25 available to meet the criteria. 59 FR 9280 (Feb. 25, 1994). However, as discussed further infra, the 1994 amendments were not intended or expected to affect the outcome of acknowledgment determinations. See, Id. 26 5 References herein to the acknowledgment regulations and citations to 25 C.F.R. Part 83 are to the 1978 27 version of the regulations unless otherwise indicated. 28 MUCKLESHOOT MEMO IN SUPPORT OF DEFENDANTS’ Office of the Tribal Attorney Muckleshoot Indian Tribe MOTION FOR SUMMARY JUDGMENT – Page 4 39015 - 172nd Avenue SE Auburn, WA 98092 (253) 939-3311 Case 2:08-cv-00717-JCC Document 74 Filed 07/27/12 Page 5 of 25

1 communities in its notice adopting the regulations where it stated: 2 There will be groups which will not meet the standards required by these 3 regulations. Failure to be acknowledged pursuant to these regulations does not deny that the group is Indian. It means these groups do not have the characteristics necessary for the 4 Secretary to acknowledge them as existing as an Indian tribe and entitled to rights and services as such. 5 . . . 6 The Department must be assured of the tribal character of the petitioner before the 7 group is acknowledged. Although petitioners must be American Indians, groups of descendants will not be acknowledged solely on a racial basis. Maintenance of tribal 8 relations – a political relationship – is indispensable. 9 43 FR 39361-62 (Sept. 5, 1978). 10 To distinguish between voluntary associations of people of native descent and tribal 11 12 political entities, the regulations require that in addition to common descent from a historic tribe,

13 a group seeking recognition must establish that a “substantial portion” of the group “lives in a 14 community viewed as American Indian and distinct from other populations in the area,” 25 15 C.F.R. §83.7(b), and that the group “has maintained tribal political influence or other authority 16 17 over its members as an autonomous entity throughout history until the present.” 25 C.F.R. 18 §83.7(c). See, Miami Nation of Indians v. Babbitt, 112 F.Supp.2d 742, 745-50 (N.D. Ind. 2000),

19 aff’d, 255 F.3d 342 (7th Cir. 2001), cert. denied, 534 U.S. 1129 (2002). 20 Thus, the regulations contemplate that a historic tribe recognized by the United States at 21 some prior time ceases to be a tribe when it no longer meets the criteria of community or political 22 23 influence. At that point the group although perhaps united by common descent from a historic 24 tribe is no longer eligible for federal acknowledgment as a tribe with a government to

25 government relationship with the United States. See, Miami Nation of Indians of Indiana, Inc. v. 26 27 28 MUCKLESHOOT MEMO IN SUPPORT OF DEFENDANTS’ Office of the Tribal Attorney Muckleshoot Indian Tribe MOTION FOR SUMMARY JUDGMENT – Page 5 39015 - 172nd Avenue SE Auburn, WA 98092 (253) 939-3311 Case 2:08-cv-00717-JCC Document 74 Filed 07/27/12 Page 6 of 25

1 U.S. Dept. of the Interior, 255 F.3d 342, 350-51 (7th Cir. 2001).6 2 The acknowledgment regulations were revised in the 1994. 59 FR 9280 (Feb. 25, 1994). 3 Changes were made to clarify the standards for acknowledgment, establish somewhat less 4 burdensome requirements for groups able to demonstrate previous unambiguous federal 5 6 acknowledgment, and expand the scope of administrative review available before the Interior

7 Board of Indian Appeals by providing inter alia for a hearing before an administrative law judge 8 when appropriate to resolve disputes of material fact. Id. 9 In promulgating the revised regulations, the Department emphasized that petitioners 10 would still need to demonstrate continuity of tribal existence and that the changes were not 11 12 intended or expected to affect the outcome of acknowledgment determinations.

13 None of the changes made in these final regulations will result in the 14 acknowledgment of petitioners which would not have been acknowledged under the previously effective acknowledgment regulations. Neither will the changes result in the 15 denial of petitioners which would have been acknowledged under the previous regulations. 16 17 59 FR at 9280. 18 [T]he revisions maintain the essential requirement that to be acknowledged a petitioner must be tribal in character and demonstrate historic continuity of tribal existence. Thus, 19 petitioners that were not recognized under the previous regulations would not be 20 recognized by these revised regulations. 21 59 FR at 9282.

22 The Department expected most petitioners would prefer to be considered under the 23 clarified standards of the new regulations. 59 FR at 9285. However, it granted groups under 24

25 6Similarly, the Ninth Circuit in addressing related claims by the Duwamish plaintiff has also held that descent from a historic tribe, even one recognized by treaty, is not a sufficient basis for tribal acknowledgment in the 26 absence of a showing of continuous social and political cohesion. See, United States v. Washington, 641 F.2d 1368, 1374 (9th Cir. 1981) (“We reject their argument that, because their ancestors belonged to treaty tribes, the appellants 27 benefitted from a presumption of continuing existence.”); See also, United Tribe of Shawnee Indians v. United States, 253 F.3d 543, 548 (10th Cir. 2001). 28 MUCKLESHOOT MEMO IN SUPPORT OF DEFENDANTS’ Office of the Tribal Attorney Muckleshoot Indian Tribe MOTION FOR SUMMARY JUDGMENT – Page 6 39015 - 172nd Avenue SE Auburn, WA 98092 (253) 939-3311 Case 2:08-cv-00717-JCC Document 74 Filed 07/27/12 Page 7 of 25

1 active consideration when the new regulations became effective the right to affirmatively elect to 2 complete the process under the 1978 regulations. Id.; 25 CFR §83.3(g) (1994). Groups electing 3 to have their acknowledgment petition considered under the 1978 regulations were nonetheless 4 granted the right to seek administrative review under the provisions of the 1994 regulations 5 6 which include the right to seek a hearing before an ALJ on disputed issues of material fact. 59

7 FR at 9285; 25 CFR §83.11(a)(1) (1994). 8 C. The Historic Duwamish and The Plaintiff Group 9 Duwamish Indians historically occupied villages in the area at the south end of Lake 10 11 Washington, and on the Black, Cedar, Duwamish and Lower White Rivers. A more expansive 12 designation of the Duwamish includes the Indians occupying villages along the shores of Puget

13 Sound, Lakes Washington and Sammamish, and the Upper White and Green Rivers which 14 Governor Stevens grouped together as the Duwamish for the purpose of the 1855 Treaty of Point 15 Elliott, 12 Stat. 927. See, ADD-PFD-V001-D0001 at 7, 10; ADD-PFD-V001-D0003 at 4-7; 16 17 ADD-PFD-V001-D0004 at 1; see also, Finding of Fact No. 73 United State v. Washington, 384 18 F.Supp. 312, 366 (W.D.Wash. 1974), affirmed, 520 F.2d 676 (9th Cir. 1975), cert. denied, 423

19 U.S. 1086 (1976). The plaintiff’s petition for acknowledgment uses the more expansive treaty 20 identification that includes the villages of the Upper Green and White Rivers as part of the 21 historic Duwamish Tribe. DUW-PFD-V003-D0001 at 11, 15, 360-61.7 22 23 7The which the government entered into with the Duwamish and 21 “allied tribes” 24 occupying the area of Western Washington east of from King County north to the Canadian Border, created four reservations. ADD-PFD-V001-D0001 at 7. Following the Treaty these reservations were often referred 25 to as Duwamish reservations and the residents identified as Duwamish Indians or as members of the Duwamish and allied tribes. Id. And, Congress through the 1920s appropriated funds for the support of the “Duwamish and allied 26 tribes.” Id. The Department found that these latter uses of the term Duwamish do not refer to the historical Duwamish or a group of individuals of Duwamish ancestry constituting a community or tribe, but rather refer 27 collectively to the Indians party to the Treaty of Point Elliott as the Duwamish or Duwamish and allied tribes for administrative convenience. Id. at 7-8; ADD-PFD-V001-D0003 at 24-25. 28 MUCKLESHOOT MEMO IN SUPPORT OF DEFENDANTS’ Office of the Tribal Attorney Muckleshoot Indian Tribe MOTION FOR SUMMARY JUDGMENT – Page 7 39015 - 172nd Avenue SE Auburn, WA 98092 (253) 939-3311 Case 2:08-cv-00717-JCC Document 74 Filed 07/27/12 Page 8 of 25

1 represented these Indians, including those whose descendants are now 2 known as the Muckleshoot Indian Tribe, in concluding the Treaty of Point Elliott. United States 3 v. Washington, supra.8 Following the negotiation of the Treaty the United States attempted to 4 relocate the Duwamish to the Port Madison Reservation on the west side of Puget Sound. This 5 6 effort proved largely unsuccessful. ADD-PFD-V001-D0001 at 10; ADD-PFD-V001-D0003 at

7 18-21. Some of these Indians moved to, or affiliated with the Muckleshoot Reservation after its 8 establishment in 1857. ADD-PFD-V001-D0001 at 11. Other Duwamish returned to the area 9 around their traditional villages at the southern end of , and the White, Green, 10 Cedar, Black, and Duwamish Rivers. ADD-PFD-V001-D0001 at 10; 025 ADD-PFD-V001- 11 12 D0003 at 27-31. ADD-PFD-V001-D0004 at 1-2. Many of the Duwamish from these traditional

13 villages later moved to or became affiliated with the reservation communities at Port Madison, 14 Muckleshoot, Puyallup, or , ADD-PFD-V001-D0001 at 11; ADD-FDD-V001-D0001 at 15 30. 16 17 Beginning in the 1850s some Duwamish women married non-Indian pioneers and moved 18 away from the reservations and their traditional villages settling with their husbands throughout

19 Western Washington. ADD-PFD-V001-D0001 at 11; ADD-PFD-V001-D0004 at 2. Five of 20 these Duwamish pioneer families are ancestral to 80% of the plaintiff group’s membership. 21 ADD-PFD-V001-D0004 at 44. 22 23

24 8Chief Seattle, whose father was , derives his Duwamish identity from his mother a Stkamish Indian from a village on what was then called the White or middle near the present vicinity of Kent. 25 See, ADD –PFD-V001-D0004 at 11; PFR-GPF-V004-D0689 at 2; DUW-PFD-V003-D0001 at 361; see also, W. Suttles and B. Lane, Southern , Vol. 7, Handbook of North American Indians 486-488 (1990). The 26 Muckleshoot Indian Tribe is the successor in interest to the Stkamish Indians that are named in the preamble to the Treaty of Point Elliott and considered part of the Duwamish Tribe under the Treaty. United States v. Suquamish 27 Indian Tribe, 901 F.2d 772, 775-76 nn. 8, 9 (9th Cir. 1990); United States v. Washington, 384 F. Supp. 312, 365-66 (W.D.Wash. 1974), affirmed, 520 F.2d 676 (9th Cir. 1975), cert denied, 423 U.S. 1086 (1976). 28 MUCKLESHOOT MEMO IN SUPPORT OF DEFENDANTS’ Office of the Tribal Attorney Muckleshoot Indian Tribe MOTION FOR SUMMARY JUDGMENT – Page 8 39015 - 172nd Avenue SE Auburn, WA 98092 (253) 939-3311 Case 2:08-cv-00717-JCC Document 74 Filed 07/27/12 Page 9 of 25

1 While the Duwamish of the traditional villages and those who had moved to the 2 reservations were interacting with one another politically and socially, there is no evidence that 3 the Duwamish pioneer families ancestral to the plaintiff were interacting with the larger 4 community of . Id. at 46. Instead, in the years immediately following the 5 6 treaty while the traditional Duwamish villages remained politically and socially viable, the

7 pioneer families ancestral to the plaintiff were assimilating into the rapidly growing mainstream 8 population of Puget Sound. Id. at 45. 9 By 1900, the traditional Duwamish off-reservation villages ceased to exist, ADD-PFD- 10 V001-D0004 at 3, and many of the important families had completed their relocation to 11 12 Muckleshoot and other reservations. ADD-PFD-V001-D0004 at 56-58. With limited exception,

13 the Duwamish families who moved to the reservations are not ancestral to the plaintiff group. Id. 14 In 1925, at the same time as Congress enacted claims legislation authorizing Western 15 Washington tribes to submit claims against the United States to the Court of Claims, a group of 16 17 eight Duwamish descendants formed the Duwamish Tribal Organization, “DTO”. ADD-PFD- 18 V001-D0003 at 49. The DTO focused on the prosecution of monetary claims against the United

19 States for the benefit of its individual members, and in 1934 opposed the Indian Reorganization 20 Act, stating its refusal to become party to “community Self-government” offered under the Act. 21 Id. at 50, 75. It is this claims organization that petitioned for acknowledgment and which is the 22 23 plaintiff in this case. Id. at 75. 24 II. ADMINISTRATIVE HISTORY

25 Shortly after the promulgation of the acknowledgment regulations in 1978, the Duwamish 26 plaintiff submitted a 10 page “undocumented” petition seeking federal recognition as an existing 27 28 MUCKLESHOOT MEMO IN SUPPORT OF DEFENDANTS’ Office of the Tribal Attorney Muckleshoot Indian Tribe MOTION FOR SUMMARY JUDGMENT – Page 9 39015 - 172nd Avenue SE Auburn, WA 98092 (253) 939-3311 Case 2:08-cv-00717-JCC Document 74 Filed 07/27/12 Page 10 of 25

1 Indian tribe. DUW-PFD-V001-D0001. In November 1987, the Duwamish submitted a more 2 lengthy petition seeking to document its claims. DUW-PFD-V003-D0001; ACR-PFD-V001- 3 D0190. The Department acknowledged receipt of the “documented Duwamish petition” and 4 advised the Duwamish of the desirability of providing additional supporting materials. ACR- 5 6 PFD-V001-D0190.

7 Following the submission of supplemental information by the Duwamish, the Department 8 conducted a preliminary review of their petition for obvious deficiencies and significant 9 omissions pursuant to 25 CFR 83.9(b). In an April 20, 1990 letter outlining the result of that 10 review, the Department requested further documentation with respect to both the community 11 12 criterion of 25 CFR 83.7(b) and the political authority criterion of 25 CFR 83.7(c).

13 ACR-PFD-V001-D0082 at 3, 5. 14 The Duwamish were further advised that they, rather than the Department, bore full 15 responsibility for researching the petition. 16 17 The Acknowledgment staff’s research during the active consideration period is for the purpose of verifying and/or elaborating on an already complete petition. The 18 Acknowledgment staff’s caseload no longer permits them to do the research necessary to fill in gaps in the petition on behalf of the petitioner to the extent they have at times done 19 in the past. 20 Id. at 1. 21

22 [W]e encourage you and your researchers to consult with the Acknowledgment staff 23 before preparing a response, so that you may utilize your research resources most effectively. The Acknowledgment staff can provide technical assistance, but cannot be 24 responsible for actual research on the part of the petitioner.

25 Id. at 5. 26 27 28 MUCKLESHOOT MEMO IN SUPPORT OF DEFENDANTS’ Office of the Tribal Attorney Muckleshoot Indian Tribe MOTION FOR SUMMARY JUDGMENT – Page 10 39015 - 172nd Avenue SE Auburn, WA 98092 (253) 939-3311 Case 2:08-cv-00717-JCC Document 74 Filed 07/27/12 Page 11 of 25

1 In May 1991, the Duwamish submitted its response to the obvious deficiency letter and 2 declined the Department’s offer to conduct a further preliminary review. See, ACR-PFD-V001- 3 D0068. Active consideration of the Duwamish petition followed. During this process 4 Department staff and contractors engaged to assist in the review of the petition conducted site 5 6 visits, met with the Duwamish plaintiff, interviewed members of the group, and engaged in

7 extensive research on the petition at various federal and state archives and document repositories. 8 See e.g., PFR-GPF-V002-D0024; PFR-MPF-V003-D0122; PFR-MPF–V003-D0006. 9 In February 1994, the Department published revised acknowledgment regulations. 25 10 CFR 83.3(g) of the revised regulations permitted petitioners under active consideration to make 11 12 an election to complete their petition under the 1978 regulations. On April 5, 1994, plaintiff

13 Hansen advised the Department that “the Duwamish Tribe elects to have its petition processed 14 under the old regulations as opposed to the new regulations,”91 0 ACR-PFD-V001-D0053. 15 Upon completion of the Department’s evaluation of the Duwamish petition, on June 28, 16 17 1996, Assistant Secretary Ada Deer published notice of her proposed finding declining to 18 acknowledge that the Duwamish Tribal Organization is an Indian tribe for the reason that it did

19 not meet three of the seven mandatory criteria for acknowledgment under 25 CFR 83.7. ADD- 20 PFD-V001-D0008; 61 FR 33762 (June 28, 1996). Assistant Secretary Deer’s proposed findings 21 are set forth in a Summary under the Criteria and Evidence for Proposed Finding Against 22 23 Acknowledgment of the Duwamish Tribal Organization which is accompanied by detailed

24 9The Duwamish had over two years of notice of the likely availability of an opportunity to make an election whether to proceed under the old regulations. Although modified in some respects not material to this matter, see 59 25 FR at 9285, the proposed regulations published in 1991 contained a provision allowing groups under active consideration to elect to continue under the 1978 regulations. 56 FR 47320, 47321 (Sept. 8, 1991). 26 10According to Plaintiffs’ Amended Petition, the Duwamish were one of five groups under active 27 consideration entitled to make an election under the transition provision of the 1994 regulations. Amended Petition Doc. 49 at ¶¶70-71. 28 MUCKLESHOOT MEMO IN SUPPORT OF DEFENDANTS’ Office of the Tribal Attorney Muckleshoot Indian Tribe MOTION FOR SUMMARY JUDGMENT – Page 11 39015 - 172nd Avenue SE Auburn, WA 98092 (253) 939-3311 Case 2:08-cv-00717-JCC Document 74 Filed 07/27/12 Page 12 of 25

1 technical reports prepared by Department staff experts in history, anthropology, and genealogy. 2 ADD-PFD-V001-D0001 through D0006. 3 The Assistant Secretary noted that the Duwamish were evaluated under the 1978 4 regulations, rather than the revised regulations, because they affirmatively elected to complete the 5 6 petitioning process under the previous regulations, as permitted under 25 CFR 83.3(g) of the

7 revised regulations. ADD-PFD-V001-D0001 at 6. However, she reiterated the Department’s 8 position that an election to proceed under the 1978 regulations should not effect the outcome of 9 the petition process, because the revised regulations “do not make changes in the basic standard 10 for demonstrating tribal existence and will not result in groups being acknowledged that would 11 12 not have been acknowledged under the previous regulations....” Id.

13 On the merits, the Assistant Secretary found that a historic Duwamish Tribe existed, but 14 that by the 20th century its descendants who had not associated with the reservation tribes had 15 become scattered throughout Western Washington. Id. at 7-8. She further found that the 16 17 petitioner Duwamish Tribal Organization was formed in 1925 as a claims organization, and not 18 for the purpose of tribal self-government. Id. at 8. Because the Duwamish petitioner has only

19 existed since 1925, she concluded the group has not been identified as Indian entity from 20 historical times until the present, and therefore does not meet criterion 83.7(a). 21 With respect to criterion 83.7(b), the Assistant Secretary found that there is no evidence 22 23 that the historic Duwamish tribe continued to exist as a community after approximately 1896. Id. 24 at 9-10. She found that the group’s membership consists largely of descendants of a handful of

25 early marriages between Duwamish women and non-Indian settlers who had little or no 26 interaction with each other. Id. at 11-12, 16. Therefore the Assistant Secretary concluded that 27 28 MUCKLESHOOT MEMO IN SUPPORT OF DEFENDANTS’ Office of the Tribal Attorney Muckleshoot Indian Tribe MOTION FOR SUMMARY JUDGMENT – Page 12 39015 - 172nd Avenue SE Auburn, WA 98092 (253) 939-3311 Case 2:08-cv-00717-JCC Document 74 Filed 07/27/12 Page 13 of 25

1 Duwamish had not demonstrated that they had maintained a distinct community as required by 2 criterion 83.7(b). Id. at 17. 3 Finally, she found that the petitioner was “not a multi-faceted political entity” and played 4 a very limited role in the lives of its members. Id. at 20. Summarizing the Department’s 5 6 evaluation of the evidence she stated, “No evidence provided by the petitioner or found by BIA

7 reveals that the petitioner has maintained political influence or authority over its members at any 8 time since its formation in 1925.” Id. at 22. Therefore the Assistant Secretary concluded that the 9 Duwamish petitioner had not demonstrated that it had maintained tribal political influence or 10 authority over its members from historical times to the present as required by criterion 83.7(c). 11 12 Id.

13 Eighteen months later on January 21, 1998, Dennis J. Whittlesey, the Duwamish group’s 14 attorney submitted the Duwamish response to the proposed findings. DUW-FDD-V001-D0003. 15 Significantly, the Duwamish response did not request that the Department reevaluate the petition 16 17 under the revised regulations, id., even though less than a month earlier the Chinook petitioner 18 which had also elected to proceed under the 1978 regulations and was also represented by

19 Whittlesey, had inquired whether the Department was willing to reevaluate the Chinook petition 20 under the 1994 regulations. See, Chinook Reconsidered Final Determination at 13, 114, 21 available at, http://www.bia.gov/cs/groups/xofa/documents/text/idc-001489.pdf .11 22 23 Department staff in the Branch of Acknowledgment and 24 Research (BAR) completed their evaluation of the Duwamish response to the proposed findings

25 and forwarded a draft decision to the Assistant Secretary recommending that he decline to 26 acknowledge the Duwamish plaintiff as an Indian tribe on December 22, 2000. ACR-FDD- 27 11References are to the “CIT” page numbers in the lower right corner. 28 MUCKLESHOOT MEMO IN SUPPORT OF DEFENDANTS’ Office of the Tribal Attorney Muckleshoot Indian Tribe MOTION FOR SUMMARY JUDGMENT – Page 13 39015 - 172nd Avenue SE Auburn, WA 98092 (253) 939-3311 Case 2:08-cv-00717-JCC Document 74 Filed 07/27/12 Page 14 of 25

1 V002-D0098 at 3; ACR-FDD-V002-D0170. On January 18, 2001, just two days before the 2 inauguration of President George W. Bush and change of administration, Acting Assistant 3 Secretary Michael Anderson, advised the BAR staff that he intended to issue a positive decision 4 on the Duwamish petition. ACR-RFR-V001-D0043 at 5; ACR-FDD-V002-D0039 at 2; ACR- 5 6 RFR-V001-D0044 at 1-2.

7 While a rewrite of the Duwamish decision directed by Anderson was underway, the Chief 8 of the Branch of Acknowledgment and Research took the extraordinary step of preparing a 9 memorandum of nonconcurrence to accompany the proposed decision stating that in BAR staff’s 10 view “the Acting AS-IA’s Duwamish finding is not consistent with the requirements of the 11 12 acknowledgment regulations. . . . The BAR does not concur with the decision to acknowledge

13 the Duwamish petitioner as an Indian tribe.” ACR-FDD-V002-D0160; ACR-RFR-V001-D0044 14 at 4. On Friday, January 19, 2001, after BAR staff were sent home for the evening Anderson 15 continued to work on a proposed Duwamish decision. ACR-RFR-V001-D0043 at 6; ACR-RFR- 16 17 V001-D0044 at 5. 18 The next Monday, January 22, 2001, the first working day of the new administration,

19 BAR staff returned to the office to find that Anderson had not signed the Duwamish decision 20 document and two of three required copies of a federal register notice announcing the decision. 21 ACR-RFR-V001-D0043 at 6; ACR-RFR-V001-D0044 at 5. Anderson was contacted and signed 22 23 the documents which were brought to him in his car outside of the Main Interior Building. ACR- 24 RFR-V001-D0043 at 7-8. ACR-RFR-V001-D0044 at 6. In the meantime the White House had

25 issued a memorandum directing all Executive Departments to hold Federal Register publications 26 for review by the new Administration. ACR-FDD-V002-D0138; ACR-RFR-V001-D0044 at 6. 27 28 MUCKLESHOOT MEMO IN SUPPORT OF DEFENDANTS’ Office of the Tribal Attorney Muckleshoot Indian Tribe MOTION FOR SUMMARY JUDGMENT – Page 14 39015 - 172nd Avenue SE Auburn, WA 98092 (253) 939-3311 Case 2:08-cv-00717-JCC Document 74 Filed 07/27/12 Page 15 of 25

1 The unusual events surrounding the Acting Assistant Secretary’s unsuccessful effort to 2 issue a final decision on the Duwamish before the change of administration in January 2001, are 3 detailed in an Investigative Report prepared by the Department of the Interior Office of Inspector 4 General, On Allegations Involving Irregularities in the Tribal Recognition Process, ACR-RFR- 5 6 V001-D0043, and a chronology of events prepared by the BAR Chief provided to the Inspector

7 General, ACR-RFR-V001-D0044. Summarizing its conclusions the OIG found: 8 Using a consultant with questionable credentials to bolster their position, BIA 9 officials Kevin Gover, Michael Anderson and Loretta Tuell were determined to recognize the six tribes that BAR had concluded did not meet the regulatory criteria.. Gover issued 10 four decisions contrary to BAR’s recommendation. Anderson attempted to issue two decisions, which were also contrary to BAR’s recommendation. In one instance, 11 however, Anderson failed to sign the decision document prior to leaving office on 12 January 19, 2001. . . . Anderson signed the decision document on January 22, 2001, subsequent to his leaving office, and therefore, without authority to do so. 13 14 ACR-RFR-V001-D0043 at 2. 15 On February 21, 2001, the BAR prepared a briefing paper on the proposed Duwamish

16 decision. ACR-FDD-V002-D0098. The briefing paper describes several areas in which the 17 “Acting AS-IA departed from established acknowledgment precedent....” Id. at 4. First, the 18 briefing memo indicates that the proposed decision ignored the BIA expert evaluation of the 19 20 evidence. The memo notes for example that, “[m]any summary statements of negative findings 21 at the end of paragraphs were changed by the Acting AS-IA’s editing to read as statements of the

22 existence of ‘probative’ evidence, even though the BIA’s analysis, which on its face contradicted 23 a finding of ‘probative’ value remained in the same paragraphs.” Id. Second, the memo 24 indicated that the AS-IA had found the petitioner previously acknowledged based on a number of 25 26 appropriation statutes and a 1925 claims act. The briefing memo explains, that the proposed 27 reliance upon the claims act was contrary to the “[t]he Department’s long-standing position . . . 28 MUCKLESHOOT MEMO IN SUPPORT OF DEFENDANTS’ Office of the Tribal Attorney Muckleshoot Indian Tribe MOTION FOR SUMMARY JUDGMENT – Page 15 39015 - 172nd Avenue SE Auburn, WA 98092 (253) 939-3311 Case 2:08-cv-00717-JCC Document 74 Filed 07/27/12 Page 16 of 25

1 that general claims legislation does not constitute previous acknowledgment.” and the BAR’s 2 analysis of the legislation. Id. at 4. Moreover, the memo notes that the Duwamish had chosen to 3 be considered under the 1978 regulations which do not provide for consideration of previous 4 acknowledgment. Id. at 5. Third, the memo indicated that the AS-IA’s interpretation of the 5 6 regulations would have effectively shifted the burden of proof from the petitioner to the

7 Government. Id. at 5. 8 In September 2001, the new Assistant Secretary concurred with the staff recommendation 9 and signed a Final Determination against acknowledgment of the Duwamish group. ADD-FDD- 10 V001-D0001. The Final Determination affirms the 1996 Proposed Finding and specifically notes 11 12 that the Proposed Finding contains an extensive review of the evidence. Id. at 8. For that reason

13 it states, the Final Determination and accompanying charts should be read together with the 14 Proposed Finding. Id. 15 The Final Determination once again explains that the Duwamish were evaluated under 16 17 the 1978 regulations based on their election under 25 CFR 83.3(g). ADD-FDD-V001-D0001 at 18 8. The Final Determination evaluates the argument and evidence submitted by the plaintiff in

19 response to the Proposed Finding and concludes the Duwamish response does not provide a basis 20 for changing the Proposed Findings that the Duwamish group does not meet the requirements of 21 criteria 83.7(a), (b), and (c). Id. at 23-24, 49-51, 70-71. 22 23 Plaintiffs were advised of the Final Determination by letter of September 26, 2001, and 24 through a Notice published in the Federal Register on October 1, 2001. IBA-RFR-V001-D0011;

25 ADD-FDD-V001-D0003; 66 FR 49966. The Federal Register Notice summarizes the findings 26 set forth in the Final Determination and also explains that much of the petitioner’s evidence 27 28 MUCKLESHOOT MEMO IN SUPPORT OF DEFENDANTS’ Office of the Tribal Attorney Muckleshoot Indian Tribe MOTION FOR SUMMARY JUDGMENT – Page 16 39015 - 172nd Avenue SE Auburn, WA 98092 (253) 939-3311 Case 2:08-cv-00717-JCC Document 74 Filed 07/27/12 Page 17 of 25

1 refers to ancestors of people not associated with the petitioner, and is not relevant to the history 2 of the petitioner because it concerns other groups or people. ADD-FDD-V001-D0003 at 2; 66 3 FR 49967.12 Both the letter and Federal Register Notice further advise the plaintiffs that the 4 Duwamish have the option of seeking reconsideration under the revised 1994 regulations before 5 6 the IBIA pursuant to 25 CFR 83.11(a)(1994). IBA-RFR-V001-D0011; ADD-FDD-V001-

7 D0003; 66 FR 49966. 8 On December 31, 2001, the Duwamish filed a Petition for Reconsideration with the IBIA 9 under the revised 1994 regulations. IBA-RFR-V001-D0008. In it the Duwamish only raise two 10 issues. 1) Whether Acting Assistant Secretary Anderson’s January 19, 2001 action was a final 11 12 determination to acknowledge petitioner? 2) And, if so, whether the September 25, 2001, final

13 determination should be retracted and the January 19, 2001, determination reinstated? The IBIA 14 found that it did not have jurisdiction over these questions under 25 CFR 83.11(d)(1994), and 15 referred the issues to the Secretary of the Interior as provided under 25 CFR 83.11(f)(1994). 16 17 IBA-RFR-V001-D0004; see also, SOL-RFR-V001-D0006. Pursuant to 25 CFR 18 83.11(f)(4)(1994), the Duwamish submitted further comments to the Secretary of the Interior

19 urging her to exercise her reconsideration authority. SOL-RFR-V001-D0027. 20 On May 8, 2002, Secretary of the Interior Gale Norton declined to refer the Duwamish 21 Request for Reconsideration to the Assistant Secretary for further consideration. ACR-RFR- 22 23 V001-D0001. The Secretary noted that the Final Determination concluded that the Duwamish 24 had not met the requirements of 25 CFR 83.7(a), (b), and (c), and that they did not seek to

25 present any new evidence showing they met any of the three criteria in connection with their 26 12“A significant portion of DTO’s evidence referred to ancestors of people not associated with DTO. . . . 27 Much of the evidence submitted in the comments had been addressed and evaluated in the PF or was not relevant to DTO’s history because it concerned other groups or people.” ADD-FDD-V001-D0003 at 2. 28 MUCKLESHOOT MEMO IN SUPPORT OF DEFENDANTS’ Office of the Tribal Attorney Muckleshoot Indian Tribe MOTION FOR SUMMARY JUDGMENT – Page 17 39015 - 172nd Avenue SE Auburn, WA 98092 (253) 939-3311 Case 2:08-cv-00717-JCC Document 74 Filed 07/27/12 Page 18 of 25

1 request for reconsideration. She found that the procedural flaws of the proposed January 19, 2 2001, finding were explained in the Final Determination and she noted that the circumstances 3 surrounding the former Acting Assistant Secretary’s actions had been investigated by the Office 4 of the Inspector General. Finally, she concluded that the Duwamish had been afforded ample 5 6 opportunity to make their case and that further review would not likely change the result. ACR-

7 RFR-V001-D0001 at 2. 8 III. ARGUMENT 9 Based on an exhaustive review of the record the Department of the Interior reasonably 10 concluded that the Duwamish do not meet 3 of the 7 mandatory criteria for acknowledgment. 11 12 The Duwamish claims that Department’s determination was procedurally defective are not well

13 founded, and ignore the fact that most of the actions of which the Duwamish complain were the 14 result of the Duwamish plaintiffs’ own choices. 15 The plaintiffs’ affirmative election to proceed under the 1978 regulations and plaintiffs’ 16 17 subsequent failure to request evaluation under the revised regulations at any time during the 18 administrative proceeding waived any possible claim of entitlement to evaluation under the

19 revised regulations. “It is a well-known axiom of administrative law that ‘if a petitioner wishes 20 to preserve an issue for appeal, he must first raise it in the proper administrative forum.’” Barron 21 v. Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004) (Citations omitted). “A party waives arguments 22 23 that are not raised during the administrative process. See Dep’t of Transp. v. Public Citizen, 541 24 U.S. 752, 764-65, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004).” N. Plains Res. Council v. Surface

25 Transp. Bd., 668 F.3d 1067, 1081 (9th Cir. 2011) 26 27 28 MUCKLESHOOT MEMO IN SUPPORT OF DEFENDANTS’ Office of the Tribal Attorney Muckleshoot Indian Tribe MOTION FOR SUMMARY JUDGMENT – Page 18 39015 - 172nd Avenue SE Auburn, WA 98092 (253) 939-3311 Case 2:08-cv-00717-JCC Document 74 Filed 07/27/12 Page 19 of 25

1 In an effort to justify their failure to raise the issue of evaluation under the 1994 2 regulations during the administrative process, the Duwamish allege that it would have been futile 3 to do so. Amended Pet. Doc. No. 49 ¶¶84, 102 - 103. These claims of futility ring hollow. First, 4 even if an agency has a predetermined policy on an issue, in order to raise issues reviewable by 5 6 the courts a petitioner must first make an objection to the agency. United States v. L. A. Tucker

7 Truck Lines, Inc., 344 U.S. 33, 37 (1952). Second, the Department’s March and May 1998 8 pronouncements, relied upon by the Duwamish in their Amended Petition (¶¶83-84) as the basis 9 for futility, do not excuse the Duwamish group’s failure to raise the issue in the four years 10 between April 5, 1994 when they elected to proceed under the 1978 regulations and March 13, 11 12 1998, when the Department first advised the Chinook that such an election could not be

13 withdrawn. 14 It is particularly noteworthy that when the Duwamish filed their response to the 15 Department’s Proposed Finding against acknowledgment in January 1998, several months before 16 17 the Department’s response to the Chinook petitioner, they did not raise the issue even though the 18 Chinook petitioner represented by the same attorney had inquired about the possibility of

19 evaluation under the 1994 regulations only weeks earlier. See discussion at page 13.13 20 The Duwamish claim that the Department improperly ignored its Chinook precedent. 21 However, as the Duwamish acknowledge, a party asserting disparate treatment must show 22 23 evidence that the two parties were similarly situated. Doc. 68, Plaintiff’s Mot. for Sum. J. at 15,

24 13The Interior Board of Indian Appeals August 2001 ruling in the Chinook matter that it lacked jurisdiction to consider the propriety of application of the 1994 regulations, as opposed to the 1978 regulations did not render 25 futile an effort by the Duwamish to seek reconsideration on the claim it now seeks to present to the Court, contrary to the allegations of ¶¶ 102 -103 of the Amended Petition. When the Duwamish filed a Request for Reconsideration 26 with the Interior Board of Indian Appeals, the only issue raised was an issue clearly outside of the Board’s jurisdiction, which the Board referred to the Secretary. IBA-RFR-V001-D0004; 37 IBIA 95, 96 (Jan. 4, 2002). If 27 the Duwamish had submitted their claim regarding the 1994 regulations to the IBIA, that issue also would have been referred to the Secretary of the Interior for further action as required under 25 C.F.R. §83.11(f). 28 MUCKLESHOOT MEMO IN SUPPORT OF DEFENDANTS’ Office of the Tribal Attorney Muckleshoot Indian Tribe MOTION FOR SUMMARY JUDGMENT – Page 19 39015 - 172nd Avenue SE Auburn, WA 98092 (253) 939-3311 Case 2:08-cv-00717-JCC Document 74 Filed 07/27/12 Page 20 of 25

1 citing, Hall v. McLaughlin, 864 F.2d 868, 872 (D.C. Cir. 1989). As the Duwamish also concede, 2 unlike the Duwamish, the Chinook twice inquired whether the Department would allow the 3 Chinook to be evaluated under the 1994 regulations, notwithstanding their original election to 4 proceed under the 1978 regulations. Doc. 68 at 9. Although the Department initially rejected the 5 6 Chinook request, Assistant Secretary Gover in his Final Determination concluded that the he had

7 “erred in denying the request to proceed under the 1994 regulations.” Doc. 69-2 at 14, Ex. 4 8 Chinook Final Determination at 2 (Jan. 3, 2001). 9 Hall v. McLaughlin and the cases cited therein make clear that when the facts and 10 circumstances of a case before an agency differ from those of an alleged precedent, “the agency's 11 12 explanation need not be elaborate.” Hall v. McLaughlin, 864 F.2d at 873. The Department’s

13 recitation of the Duwamish election to proceed under the 1978 regulation in its proposed 14 determination, ADD-PFD-V001-D0001 at 6, and final determination, ADD-FDD-V001-D0001 15 at 8, is sufficient because there was no denial of a request to proceed under the 1994 regulations. 16 17 The Department was not required to treat things which are different in fact as though they were 18 the same. See, Plyler v. Doe, 457 U.S. 202, 216 (1982); Thornton v. City of St. Helens, 425 F.3d

19 1158, 1168 (9th Cir. 2005). 20 The Duwamish characterize Acting Assistant Secretary’s January 19, 2001, actions as 21 “the Department’s initial decision” and as the Department’s “January Final Determination” 22 23 noting that Anderson sought to evaluate the Duwamish under both the 1978 and 1994 24 regulations, Doc. 68, Pl. Mot. for Sum. J. at 13, 14, and suggest that the Department deleted the

25 evaluation under the 1994 regulations contained in the “January Final Determination” from the 26 September 2001 Final Determination without adequate explanation. Id. at 14. 27 28 MUCKLESHOOT MEMO IN SUPPORT OF DEFENDANTS’ Office of the Tribal Attorney Muckleshoot Indian Tribe MOTION FOR SUMMARY JUDGMENT – Page 20 39015 - 172nd Avenue SE Auburn, WA 98092 (253) 939-3311 Case 2:08-cv-00717-JCC Document 74 Filed 07/27/12 Page 21 of 25

1 In fact as explained in the Federal Register Notice accompanying the September 2001 2 Final Determination and in a subsequent Inspector General’s Report, the Acting Assistant 3 Secretary’s January 2001 draft decision document was not properly signed, was not sent to the 4 Federal Register, and remained pending in the Department when the new Administration took 5 6 office. ADD-FDD-V001-D0003 at 1; ACR-RFR-V001-D0043 at 2. See discussion at 14-15.

7 The Acting Assistant Secretary’s draft decision therefore was not the “Department’s initial 8 decision,” a “Final Determination,” or otherwise precedent which the Department was obligated 9 to explain when it actually did issue its Final Determination in September 2001. 10 Moreover, the record reflects numerous reasons for the Department’s rejection of the 11 12 Acting Assistant Secretary’s proposed analysis. The Final Determination and a briefing memo

13 on the events of January 10-25, 2001, explain that the Duwamish were evaluated under the 1978 14 regulations because they “chose to continue pursuing acknowledgment under the 1978 15 regulations. . . .” ADD-FDD-V001-D0001 at 8; see also, ACR-FDD-V002-D0098 at 5. Acting 16 17 Assistant Secretary Anderson failed to explain his rejection of the staff recommendation against 18 acknowledgment and his proposed modifications of the staff’s recommended decision. ADD-

19 FDD-V001-D0003 at 1; ACR-FDD-V002-D0098 at 4. The Acting Assistant Secretary proposed 20 to apply the 1994 regulations and its unambiguous previous acknowledgment provision without 21 notice to interested parties. ACR-FDD-V002-D0098 at 5. And, the Acting Assistant Secretary’s 22 23 reliance upon the 1925 Claims Act and various appropriations statutes conflicted with the 24 Department’s longstanding position that such legislation does not constitute unambiguous 25 26 27 28 MUCKLESHOOT MEMO IN SUPPORT OF DEFENDANTS’ Office of the Tribal Attorney Muckleshoot Indian Tribe MOTION FOR SUMMARY JUDGMENT – Page 21 39015 - 172nd Avenue SE Auburn, WA 98092 (253) 939-3311 Case 2:08-cv-00717-JCC Document 74 Filed 07/27/12 Page 22 of 25

1 previous acknowledgment and the analysis of that legislation in the proposed finding. ACR- 2 FDD-V002-D0098 at 4.14 3 The Duwamish assert that the Department revised the acknowledgment regulations in 4 1994 because “it recognized there were serious flaws in the 1978 regulations that prejudiced the 5 6 petitioners,” and that since March 1994 the Department has not denied a petitioner, other than the

7 Duwamish, without evaluation under 1994 regulations to avoid error. Doc. 68, Pl. Mot. for Sum. 8 J. at 24. These assertions are untrue. 9 The 1994 revisions to the acknowledgment regulations were made to clarify and 10 streamline the regulations, not because the department had recognized “serious flaws” that 11 12 prejudiced petitioners or might lead to erroneous results. See, 59 FR 9280. Indeed, the

13 Department emphasized that the revisions to the regulations were of a nature that would not 14 result in any change in the outcome of acknowledgment decisions from those made under the 15 previous regulations. Id. 16 17 The preamble to the 1994 regulations makes clear that the “new regulations were meant 18 simply to codify existing practice concerning standards of evidence, and disclaimed any intention

19 to make substantive modifications that would change outcomes. . . ..” Miami Nation of Indians 20 of Indiana, Inc. v. Babbitt, 112 F. Supp. 2d 742, 760 (N.D. Ind. 2000). As noted previously, the 21 Department also specifically addressed the effect of the Duwamish choice to be evaluated under 22 23 the 1978 regulations in its 1996 Proposed Finding where it confirmed that because the basic 24 14If the Court nonetheless finds the Department’s explanation for its evaluation of the Duwamish petition 25 under the 1978 regulations rather than the 1994 regulations insufficient, the appropriate remedy is a remand for further explanation of the Department’s decision to proceed under the 1978 regulations, as opposed to a remand for 26 evaluation under the 1994 regulations. See, Muwekma Ohlone Tribe v. Kempthorne, 452 F. Supp. 2d 105, 115 (D.D.C. 2006). 27 28 MUCKLESHOOT MEMO IN SUPPORT OF DEFENDANTS’ Office of the Tribal Attorney Muckleshoot Indian Tribe MOTION FOR SUMMARY JUDGMENT – Page 22 39015 - 172nd Avenue SE Auburn, WA 98092 (253) 939-3311 Case 2:08-cv-00717-JCC Document 74 Filed 07/27/12 Page 23 of 25

1 requirements for acknowledgment remained unchanged the Duwamish choice should not affect 2 the outcome. ADD-PFD-V001-D0001 at 6. A brief review of the Department’s findings would 3 readily confirm that the Duwamish were not prejudiced as the result of evaluation under the 1978 4 regulations for the simple reason that had the Department actually applied the 1994 formulation 5 6 of the acknowledgment criteria to its findings the outcome would have been the same. See,

7 Amicus Muckleshoot Mem. in Opp. to Motion to Amend, Doc. 43 at 10-13. 8 The 1925 Claims Act upon which the Duwamish plaintiffs seek to rely does not even 9 refer to the Duwamish let alone constitute unambiguous Congressional recognition of the 10 existence of a Duwamish Tribe in 1925. A departmental briefing paper on Acting Assistant 11 12 Secretary Anderson’s draft decision notes that its reliance upon the Claims Act was contrary to

13 the “Department’s long-standing position ... that general claims legislation does not constitute 14 previous acknowledgment” and the analysis of the Department’s experts that the claims 15 recipients received awards as “individual Indian descendant, not as members of a tribe.” ACR- 16 17 FDD–V002-D0098 at 4. As the Department explained at some length in the Chinook 18 Reconsidered Final Determination at 34 - 36 (July 5, 2002),15 available at,

19 http://www.bia.gov/cs/groups/xofa/documents/text/idc-001489.pdf , “the 1925 Act on its face 20 does not satisfy the regulatory standard for ‘previous Federal acknowledgment....’” Id. at 35. 21 [W]hat the acknowledgment regulations require is Federal action “clearly premised” on 22 identification of a “tribal political entity,” and “indicating clearly” the recognition of a 23 government-to-government relationship with the United States. In that respect, the 1925 Act falls short, because a “Chinook Tribe” of descendants, organized for purposes of 24 bringing a claim, did not require that it be organized as, or function as, a political or governmental entity, or that it have a government-to-government relationship with the 25 United States. See also Cohen's Handbook of Federal Indian Law 7, 12 (Strickland 1982 26 ed.) (Congress sometimes designated a “tribe” for claims purposes without recognizing that same entity as a “tribe”for political purposes). Lacking such requirements as a “clear 27 15References are to the “CIT” page number in the lower right corner. 28 MUCKLESHOOT MEMO IN SUPPORT OF DEFENDANTS’ Office of the Tribal Attorney Muckleshoot Indian Tribe MOTION FOR SUMMARY JUDGMENT – Page 23 39015 - 172nd Avenue SE Auburn, WA 98092 (253) 939-3311 Case 2:08-cv-00717-JCC Document 74 Filed 07/27/12 Page 24 of 25

1 premise,” the 1925 Act on its face does not satisfy the regulatory standard for “previous Federal acknowledgment,” as recently reaffirmed in the Cowlitz Reconsidered Final 2 Determination. (Emphasis in original.) 3 Id. The Department goes on to note that none of the groups that have petitioned for 4 acknowledgment as successors to a historical tribe included under the 1925 claims legislation 5 6 have been viewed by the Department as unambiguously acknowledged by the 1925 Act. Id. at

7 36. 16 8 IV. CONCLUSION 9 For the foregoing reasons the Federal Defendants’ Motion for Summary Judgment should 10 be granted and Plaintiffs’ Motion for Partial Summary Judgment denied. 11 12 Respectfully submitted this 27th day of July, 2012. 13 14 s/ Richard Reich s/ Robert L. Otsea, Jr. Richard Reich, WSBA No. 8178 Robert L. Otsea, Jr., WSBA No. 9367 15 Attorney for Muckleshoot Tribe Attorney for Muckleshoot Tribe 16 Office of the Tribal Attorney Office of the Tribal Attorney 39015-172nd Avenue SE 39015-172nd Avenue SE 17 Auburn, WA 98092 Auburn, WA 98092 (253) 876-3123 (253) 876-3146 18 [email protected] [email protected] 19 20 21 22 23 24 25 16In their motion plaintiffs also cite to pleadings in the action brought by the plaintiff under the 1925 Claims 26 Act. See, Doc. 68 at 6; Doc 69-3 Ex. 10 & Ex. 11. These pleadings do not appear to be part of the administrative record. And, as explained in the Chinook Reconsidered Final Determination quoted above, recognition of a group of 27 descendants as having the status of a “tribe” for the purposes of presenting a claim against the United States under the 1925 Act does not constitute recognition of the group as a “tribe” for political purposes. 28 MUCKLESHOOT MEMO IN SUPPORT OF DEFENDANTS’ Office of the Tribal Attorney Muckleshoot Indian Tribe MOTION FOR SUMMARY JUDGMENT – Page 24 39015 - 172nd Avenue SE Auburn, WA 98092 (253) 939-3311 Case 2:08-cv-00717-JCC Document 74 Filed 07/27/12 Page 25 of 25

1 CERTIFICATE OF SERVICE 2 I certify that on July 27th, 2012, I electronically filed the foregoing Amicus Muckleshoot 3 Tribe’s Memorandum in Support of Federal Defendants’ Motion for Summary Judgment and 4 Opposition to Plaintiffs’ Motion for Partial Summary Judgment on First Cause of Action, with 5 6 the Clerk of Court using the CM/ECF system, which will send notification of such filing to the

7 attorney(s) of record for the parties in this matter. 8 9 Dated: July 27, 2012 10 11 12 /s Richard Reich Richard Reich, WSBA No. 8178 13 Attorney for Amicus Muckleshoot Tribe 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MUCKLESHOOT MEMO IN SUPPORT OF DEFENDANTS’ Office of the Tribal Attorney Muckleshoot Indian Tribe MOTION FOR SUMMARY JUDGMENT – Page 25 39015 - 172nd Avenue SE Auburn, WA 98092 (253) 939-3311