Fighting for survival

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Duwamish sues Interior for acknowledgment

SEATTLE - Chief Seattle, the famous Duwamish leader for whom the city of Seattle is named, was an advocate for peaceful coexistence with the Euro-American settlers, who manifestly enhanced their own destiny throughout the 19th century by pushing west into indigenous lands. Now, almost 150 years after the chief's death, the settlers are thriving, but the Duwamish Tribe is fighting to survive as a people.

The tribe filed a lawsuit May 7, asking U.S. District Court for the Western District of Washington in Seattle to set aside the BIA's September 2001 final determination that denied the tribe federal recognition and reinstate an earlier positive decision.

Defendants in the case are the Interior Department, the BIA, the Office of Federal Acknowledgment and the U.S. government.

The lawsuit makes numerous claims under three broad allegations: BIA officials violated the Administrative Procedures Act by acting arbitrarily and capriciously, and abused their discretion in evaluating the tribe's petition for federal recognition; the tribe was denied due process under the Fifth Amendment; and the federal government violated the law by issuing a decision that was politically motivated rather than impartially based on the merits of the petition.

The decision to reverse the tribe's federal acknowledgment was not based on facts, according to Scott Wheat, an enrolled member of the Choctaw Indians of Oklahoma and one of the tribe's attorneys.

''It was reversed because there was an administration change. For those people who have lived in the Puget Sound region, the Duwamish Tribe is like the elephant in the living room. Everyone knows the Duwamish Tribe is there and has been there for a long, long time. It's just certain decision makers who want to pretend it's not so.''

The Duwamish received federal acknowledgement in a final determination during the last days of the Clinton administration, but it was never finalized by publication in the Federal Register.

Michael Anderson, the acting assistant secretary of Indian affairs at the time, signed off on his review of the final determination Jan. 19, 2001, concluding that the tribe had met all seven criteria for recognition.

The Bush administration took office the next day. According to the lawsuit, Anderson signed the documents necessary for publication in the Federal Register Jan. 22, but Interior never forwarded them to the Federal Register. Instead, Interior announced its intention to ''review all non-final decisions reached by the previous administration.''

Nine months later, the BIA issued its final determination denying the tribe federal status.

The new negative final determination set up and used ''an unfair process that arbitrarily and capriciously changed rules,'' treated the tribe differently than other tribes and ''willfully omitted material evidence in its politically driven desire to substitute a negative determination for a prior positive finding,'' the lawsuit says.

The Duwamish were among several tribes whose preliminary or final positive determinations under the Clinton administration were reversed by the Bush administration, including the Eastern Pequot Tribal Nation and the Schaghticoke Tribal Nation in Connecticut, two Nipmuc tribes in Massachusetts, the Little Shell Tribe of Chippewa Indians of Montana and the Chinook Nation of Washington.

The Snohomish tribe, which was denied federal acknowledgment in 2003, filed a lawsuit similar to the Duwamish's against the federal government in April.

The Schaghticokes' federal acknowledgment was granted in 2004 and reversed in 2005 after a fierce campaign of opposition led by Connecticut officials and the powerful White House-connected Republican lobbyist BGR Holding LLC (formerly Barbour, Griffith & Rogers). The tribe has a pending APA appeal in federal court alleging that the loss of its federal status resulted from unlawful political influence, arbitrary and capricious actions by the BIA, and a trampling of the tribe's due process rights.

The Samish Indian Nation's negative decision was reversed after a full-blown six-day evidentiary hearing and finding in 2001 that an Interior official had violated the tribe's constitutional rights.

''The Western District [court of Washington] is not unfamiliar with the sordid history of federal acknowledgement,'' Wheat said.

But elected officials aren't the only ones working against federal recognition. Washington state has 28 federally recognized tribes and not all of them always stand in solidarity with other tribes.

''Let me just say this. Oftentimes, tribes that are seeking federal recognition are opposed by other federally recognized tribes, so I think the BIA is under pressure from various constituencies when it comes to recognizing tribes. It's an unfortunate reality of the acknowledgment process that in the gauntlet the tribes have to run through, sometimes their principal opponents are their own relatives,'' he said.

If Duwamish regains its federal status, it will be entitled to federal funding for social services, the creation of reservation land, and a casino in Seattle that would compete for market share with other tribes.

''In the West, you have to throw in fishing rights as well.''

Without federal recognition, the tribe has struggled for the past 25 years to provide health, education and cultural services to its 600 members through Duwamish Tribal Services, a nonprofit 501(c)(3) organization.

In addition to the first positive decision, Duwamish has the benefit of some of the strongest evidence of federal acknowledgment, including its prior acknowledgment as a signatory to an 1855 treaty.

The tribe is awaiting a response from the federal government to its May 7 complaint. Wheat said he's prepared for a long, hard battle.

''It's clear to me the Duwamish did not receive a fair and impartial determination. That's a terrible miscarriage of justice and I'm happy to vigorously advocate on behalf of the tribe simply because it's the right thing to do.

''We want to put that entire questionable decision-making process on the table and expose it to the light of day because we believe that tribes, just like anybody else, are entitled to an impartial decision maker. This shouldn't be a political process.''