Samish Tribe Wins Battle Against Federal Policies On Tribal Recognition

The Samish Indian Tribe of Washington state won a significant victory when an appellate court ruled that the Department of the Interior cannot determine behind closed doors which tribes qualify as a federally recognized tribe, according to attorney Russell Barsh of Washington state.

The 9th Circuit Court of Appeals affirmed the February 1992 judgment of a lower District Court, which found that the Department of the Interior’s informal administrative procedures for recognition of American Indian tribes, a prerequisite for acquiring federal benefits for American Indians, violates the due-process clause.

Judge Mary Schroeder of the 9th Circuit Court ruled that the Samish should receive a formal adjudication under the Administrative Procedure Act of the United States Code and should no longer be subject to informal procedures the Secretary of the Interior established in 1978 because those procedures violate due process.

“This will have a real impact on the federal government’s acknowledgment process in regards to the procedures the federal government uses to recognize tribes,” Barsh said.

Judge Schroeder found that tribes seeking federal recognition are entitled to a “full-dress” hearing, he said, adding that 40 to 50 tribes across the nation will be affected by the ruling.

Samish Chairman Margaret Greene had filed the suit against the former Secretary of the Interior Manuel Lujan and the case continued when Secretary of the Interior Bruce Babbitt was appointed to that position. The case was on appeal from the United States District Court for the Western District of Washington.

The Samish Indian Tribe of Washington filed the suit after it sought federal recognition in 1972. At that time Congress mandated tribes had to be federally recognized to receive funding from the government with regard to its trust responsibility.

Congress allowed the Secretary of the Interior to determine federal recognition procedures, permitting the Department of the Interior to conduct its own research and to accept materials from interested third parties. In the administrative process, the petitioning tribe was not allowed to see materials submitted by interested third parties. The final decision on tribal status is made after the department’s findings are published in the Federal Register and a 120-day notice and comment period ends.

In 1979, the Samish Tribe again sought federal recognition but under the new regulations, the Assistant Secretary of Indian Affairs published a notice finding that the Samish should not be recognized as a tribe.

The 120-day comment period was delayed several times while the Samish sought discovery under the Freedom of Information Act. The final decision denying recognition was published in February 1987. Again the Secretary of the Interior denied the Samish’s requests for recognition.

Samish Chairman Margaret Greene filed the first complaint in April 1989.

Both the lower court and the 9th Circuit Court of Appeals agreed in their rulings that:

The Samish had received health and other benefits in the 1970s that were cut off because of lack of tribal recognition;

The Samish had established constitutionally protected property interests that entitled them to a hearing before benefits were cut off; and

The existing recognition procedures violated due process because they lacked provisions for a hearing, cross-examination of witnesses or inspection by the petitioning tribe of the actual record on which the administrative decision was based.