OBSERVER FILE PHOTO
TACOMA — The Chinook Indian Nation last week won an important legal battle in federal court.
At a May 8 hearing in Tacoma, attorneys for the federal Department of the Interior and Bureau of Indian Affairs tried to get a judge to throw out the tribe’s 2017 civil suit, which is part of their ongoing effort to win federal recognition. In a June 20 decision, a judge upheld all but one of the tribe’s claims.
“Seven of eight of our claims surviving the government’s best efforts to see them dismissed or not heard by the court is a huge victory for us,” Chinook tribal Chairman Tony Johnson said on June 26. “We feel really good that these claims are going to move forward.”
Pursuit of recognition
Among other things, the tribe’s lawsuit argues that the Chinook should be recognized on the basis of the unratified Tansy Point Treaty of 1852, and the government’s 100-years-long record of legal battles with the tribe. Recognition would give the Chinook better federal protections and benefits, as well as access to money for things like cultural preservation and healthcare.
The tribe also asked to be allowed to re-petition for recognition because the government has made significant changes to the process since the tribe’s official status was granted in 2001, and then revoked by the George W. Bush administration in 2002.
The Chinook asked for access to a trust, created in 1970, to compensate the Lower Chinook and Clatsop people for land stolen from them. The tribe received regular account statements for the trust, now worth about $500,000 for decades, but they unexpectedly stopped coming in 2015. Johnson, the chairman, was informed that as an unrecognized tribe, they did not have the right to get information about the trust, much less the money it contained.
Had the tribe’s case been thrown out, the tribe would have appealed to the United States Court of Appeals for the Ninth Circuit.
Judge Ronald Leighton denied the tribe’s request that a judge grant them federal recognition. In his 27-page decision, Leighton acknowledged the serious flaws and inconsistencies in the Bureau of Indian Affairs’ process for determining which groups get official tribal status. However, he said he could not rule on that aspect of their case because previous courts have determined only the legislative and executive branches of government can make recognition decisions.
“The Court in no way diminishes what members of the Chinook Indian Nation understandably view as an inconsistent process that lacks transparency,” Leighton wrote. “Yet, this court is bound to adhere to the well-established legal principle that the issue of federal acknowledgment of Indian tribes is a quintessential political question that must be left to the political branches of government and not the courts.”
In good standing
Four of the tribe’s claims related to their desire to petition for recognition again, under the revised 2015 rules, which make it slightly easier for a tribe to establish that members have a shared cultural and political heritage. Attorneys for the tribe argued that the current ban on re-petitioning violates the tribe’s constitutional rights, as well as a federal law that forbids “arbitrary and capricious” decision-making processes.
Federal attorneys tried to argue that the tribe didn’t have legal standing to sue on this basis, because they had no proof that the outcome would be different if they were to petition again.
However, Leighton pointed out that standing — a person’s right to have their case heard in a particular court — has nothing to do with whether the case has a decent chance of winning. Instead, standing depends on whether the plaintiff suffered some type of harm caused by the defendant’s actions, and whether a favorable decision would help repair that harm.
Leighton said allowing the tribe to re-petition would clearly repair the harm done by the government’s ban on new petitions, so the tribe had standing.
“Plaintiffs do not have to prove at this point that they will ultimately prevail…,” Leighton wrote.
‘These guys are the guys’
The tribe’s final three claims concerned access to money that was specifically set aside for them. Federal attorneys argued the tribe should not be able to sue for access to the money because they haven’t exhausted all of the administrative options for regaining access.
The judge pointed out some serious flaws in the feds’ reasoning. For one thing, Leighton said, the Chinook should not be required to go through a cumbersome bureaucratic process when the Bureau of Indian Affairs has already made it clear that it has no intention of giving the Chinook information about their account.
“There is virtually no chance that requiring the Plaintiffs to go through [the] formal request process will make any difference,” Leighton said.
The tribe also claimed they were being denied their constitutional right to due process where their money is concerned. The federal attorneys responded by saying that the money is simply being held in trust for the rightful recipients — the Lower Chinook and Clatsop Indians. The judge said that their reasoning creates a “Catch-22”: The government will not give the money to those closely connected groups until they are federally recognized, but will not allow them to re-petition for recognition. Leighton said that effectively means no one with a reasonable claim on the money will ever be able to claim it.
“Who could conceivably establish a sufficient connection to the funds held in trust that is not also banned from re-petitioning for acknowledgment?” Leighton asked. He quoted a statement made by one of the tribe’s two attorneys.
“These guys are the guys,” the attorney said. “The idea that somebody else is going to come and establish federal recognition by the process the government wants to limit everyone to is just not going to happen.”
More hearings to come
It is not clear yet how either party will respond to Leighton’s decision.
“There’s not a perfect answer,” Johnson said. “We have been asked to come together, both parties, to give a status update to the judge. That will happen soon.”
One of the parties could make a motion for summary judgment. If that were to happen, both parties would submit additional materials for Leighton to review, and he would rule on the lawsuit.
“Summary judgment basically allows us to get a decision from this judge without a trial,” Johnson explained. It would mean there are no contested facts to be determined, leaving the judge to make a ruling based on established statutes and past cases.
Even if the case proceeds to summary judgment, some aspects of the case are likely to end up in appeals court. The Chinook could try to appeal the dismissed claim. The federal attorneys could try to appeal the seven claims that were granted in favor of the tribe.
“Even if we didn’t pursue an appeal on that right now, that is in our back pocket, and undoubtedly will be addressed at another level eventually,” Johnson said.