A Seattle tribe wants a federal court to order the U.S. Department of the Interior to produce documents it alleges contain redacted information that could be pertinent in its case to overturn a 2019 decision by the agency to deny it federal recognition, saying the records shouldn't be concealed under the Administrative Procedure Act.
The Duwamish Tribe, in a motion for in camera review filed Wednesday, alleged the DOI withheld or redacted 11 documents when the agency responded to a February court order to complete and supplement the government's administrative records with additional information in its decision to deny federal recognition.
In redacting the information, the DOI claimed it had a blanket protection from disclosure by deliberative process privilege, which protects information that shows the process by which a government agency reaches a decision, the motion says.
The tribe is asking the court to determine if the documents are protected by deliberative process privilege or if their "probative value outweighs any potential harm to the agency from their non-disclosure."
"The deliberative process privilege … does not apply in this case, where the redacted and withheld documents may go to the heart of the question of whether an agency action violated the tribe's equal protection or due process rights, or whether the agency otherwise acted arbitrarily and capriciously in violation of the [Administrative Procedures Act]," the tribe said.
Litigation started in May 2022, when the tribe sued the DOI over its denial of federal recognition status, saying the department disregarded the 1855 Treaty of Point Elliott signed by Chief Seattle and government officials that proclaimed the tribe's sovereign status. The complaint alleges the DOI has declined to recognize the Duwamish Tribe for decades and in doing so, violated the tribe's right to equal protection under the Fifth Amendment when the agency found the tribe couldn't meet certain criteria for the approval.
"By refusing to acknowledge the Duwamish Tribe and place the tribe on its list of federally recognized tribes, the [DOI's] final decision unlawfully terminates the prior federal recognition of the Duwamish Tribe," according to the complaint.
In August 2022, the DOI gave the tribe the administrative record pertaining to its denial of federal recognition, but omitted relevant information that the tribe believed existed, based on responses to Freedom of Information Act requests the tribe had submitted.
The tribe contended the proposed DOI record didn't contain any documentation supporting its refusal to apply 2015 regulations to its decision or its 1997 decision to federally recognize the Snoqualmie Indian Tribe of Washington, Wednesday's motion says.
In compliance with the February court order to supplement the administrative record for the Duwamish Tribe, the DOI identified 207 new documents, produced 30 of them in unredacted form and asserted deliberative process privilege over 126 of the records. Out of the 126 privileged documents, the DOI withheld 100 of them in full, according to the tribe.
"It is significant that the only documents that the department now claims are privileged are documents that were initially excluded from the administrative record, but which the Duwamish brought to the court's attention in its initial motion to complete the record (after the tribe learned that these documents existed through its FOIA requests)," the tribe said. "Defendants should be required to certify that any document that has been excluded from the administrative record is documented in the department's privilege logs."
Counsel for the parties met May 5 over the DOI's blanket assertion of privilege over several of the documents, with the department agreeing to further review the records to determine if they could be produced with specific redactions. The DOI, however, later determined it "did not find factual information that can be segregated out of the withheld documents."
The tribe contended that privilege over documents is inapplicable when constitutional claims are at issue, saying courts in the past have found due process violations in the DOI's denial of federal recognition status where there is evidence of "informal decision-making, behind closed doors and with an undisclosed record" that "is not an appropriate process for the determination of matters of such gravity."
In addition, the tribe said courts have relied on evidence of "bad faith" or "improper behavior" by a federal agency, concluding that when a party challenges an agency action, the "actual subjective motivation of agency decision makers" may be material.
"Here, the withheld and redacted documents may go to the heart of the Duwamish Tribe's equal protection, due process, and [Administrative Procedures Act] claims — all of which challenge the department's apparent bias, bad faith, and otherwise improper behavior directed at the tribe," it said.
The tribe first contacted the DOI in 1977 seeking recognition, but was soon denied when U.S. District Judge George Hugo Boldt ruled in litigation over tribal fishing that the Duwamish Tribe wasn't a successor to the tribe that signed the treaty. The ruling was later affirmed by the Ninth Circuit, according to the complaint.
For three decades, the tribe pursued recognition by formally petitioning the DOI and seeking changes to its regulations before the agency's final denial was confirmed in 2019.
Counsel for both parties could not be reached Friday for comment.
The Duwamish Tribe is represented by Bart J. Freedman, Theodore J. Angelis, J. Timothy Hobbs, Benjamin A. Mayer, Endre M. Szalay, Shelby R. Stoner, Natalie J. Reid and Courtney A. Neufeld of K&L Gates LLP.
The Department of the Interior is represented by Todd Kim, Devon Lehman McCune and Christopher C. Hair of the U.S. Department of Justice's Environment and Natural Resources Division.
The case is The Duwamish Tribe et al. v. Haaland et al., case number 2:22-cv-00633, in the U.S. District Court for the Western District of Washington.