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November 24, 2014

The Resuscitation of the Duwamish Recognition Effort Re: Tribal Law

A federal judge has just given new life to the efforts of the descendants of Chief Seattle to gain federal recognition for his tribe, the Duwamish Tribe of Washington. Specifically, Judge John Coughenour has vacated a negative determination of tribal status by the Department of the Interior and remanded the file to the Department with direction to reconsider the tribal Acknowledgement Petition under all applicable regulations, rather than only half of them.

This order reversed one of the most controversial actions in the history of the Department of the Interior’s frequently criticized administrative tribal recognition process managed by the Office of Federal Acknowledgment (“OFA”), and it validated actions of former Acting Assistant Secretary for Indian Affairs Michael Anderson, who had written a positive determination for Duwamish over OFA’s objections and proposed negative order in the final hours of the Clinton Administration on January 19, 2001. The Bush Administration withdrew the Anderson Final Determination prior to its publication in the Federal Register and subsequently replaced it with a final negative determination some nine months later.

The principal dispute concerned Interior’s reliance on one set of acknowledgement regulations published in 1978 and Anderson’s reliance on subsequent regulations published in 1994. The Duwamish claimed that the Department violated the Administrative Procedure Act and their equal protection rights by failing to evaluate the Duwamish petition under both the 1994 and 1978 regulations, despite having evaluated a similarly situated Washington tribe’s petition under both sets of regulations at the same time.

Anderson hand-edited the OFA’s proposed negative determination, reversed its ultimate conclusion, and signed the hand-edited copy just before departing the Department late on Friday, January 19, with instructions for OFA to retype the document to reflect his edits. However, he had not executed all of the necessary documents because they apparently were not given to him by OFA personnel. OFA summoned him back to the Department on the following Monday to execute the additional documents, an action curiously conducted outside the Department since Anderson’s federal credentials had expired and OFA did not authorize clearance for him to enter the building. At some subsequent point, the file became the subject of a formal investigation that resulted in Anderson being cleared of any suggested impropriety.

As Anderson was being vindicated, the Duwamish were losing. The Interior Solicitor rendered a new final determination that fall restoring the OFA denial, and the file seemed closed for a tribe that essentially had exhausted all available funding with which to continue the effort. Nonetheless, the tenacious Duwamish team kept their hopes for status clarification alive. A legal challenge was filed and prosecuted by a Seattle law firm to its successful conclusion long after most tribal supporters had given up hope.

Interior now has to go back and retrace Anderson’s steps, which is to assess the Duwamish Petition under both sets of regulations rather than relying solely on the one that admittedly was unfriendly to the Duwamish situation. Anti-Duwamish bias at OFA is being watched by a lot of people this time, including one very involved federal judge.

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About this Author

Dennis J. Whittlesey tribal law attorney, dickinson wright law firm
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PROMINENT ASSIGNMENTS Expertise in development of economic projects, including casinos, for Indian tribes in America and Canada Served as legal counsel to both unrecognized and federally recognized Indian tribes, providing counsel on Indian gaming law and Indian lands as well as a wide range of state and federal taxation issues unique to Indian tribes, individuals and lands Served as Special Counsel for Gaming to the cities of Detroit; Buffalo, NY; Battle Creek, MI; Lima, OH; Middleborough, MA; and Barstow, CA as well as Calhoun County, MI, DeKalb County, IL, and seven California counties...

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