Wash. Tribe Not Entitled To Recognition, DC Circ. Says

The D.C. Circuit has affirmed a lower court's decision barring the Pilchuck Nation from securing tribal recognition, saying the group located in Washington state failed to go through a formal process as overseen by the U.S. Department of the Interior.

The federal appellate court said in its Tuesday per curiam judgment that the issues raised by the Pilchuck Nation and its chairman, Kurt Kanam, do not warrant a published opinion and ordered that the district court's decision be affirmed. Pilchuck and Kanam failed to apply for acknowledgment to the DOI under the U.S. government's so-called Part 83 regulations, under which tribes may be federally recognized, the D.C. Circuit said.

"DOI regulations set forth a process for putative Indian tribes to seek federal recognition," the judgment said. "This court has long held that tribes seeking recognition must pursue the Part 83 process. It is undisputed that the Pilchuck Nation failed to do so, which dooms this lawsuit."

The D.C. Circuit cited its 2016 decision in Mackinac Tribe v. Jewell, its 2013 decision in Muwekma Ohlone Tribe v. Salazar , and its 1987 decision in James v. U.S. Department of Health and Human Services .

Last year, on June 28, U.S. District Judge Richard J. Leon rejected the Pilchuck Nation's latest attempt to gain formal recognition, saying it had not exhausted its nonlegal options because it never sought tribal status through the official process overseen by the DOI's Bureau of Indian Affairs.

In his ruling, Judge Leon found that the Pilchuck Nation and Kanam have "not even attempted to comply with the procedural requirements established in Part 83."

Kanam's efforts to revise his June 2021 lawsuit confirmed his failure to follow the Part 83 process, according to Judge Leon. The judge said Kanam initially claimed that the federal court must endorse a putative order by the Karluk Tribal Court of the Native Village of Karluk, Alaska, which recognized the Pilchuck as party to an 1855 treaty with the U.S. government.

Citing "substantive contradictions" in Kanam's later filings, the judge declined to extend leave to amend the suit, which he called the Pilchuck Nation's fourth bid for federal recognition.

Requiring tribes to follow the Part 83 rules, he said, "is appropriate because it is consistent with congressional direction, leverages agency expertise, creates an administrative record ripe for judicial review and allows for the possibility that the matter will be resolved administratively without need for judicial intervention."

Kanam sued U.S. Interior Secretary Deb Haaland and top BIA officials last year, saying the government has ignored multiple requests by the Pilchuck Nation for federal recognition.

That disregard violated the tribe's due process rights and the Administrative Procedure Act, according to Kanam, who has claimed that he descends via adoption from a signatory to the 1855 Treaty of Point Elliott. Kanam's past attempts to secure formal recognition largely stem from a March 2012 ruling by the Karluk Tribal Court, which declared the Pilchuck Nation to be a "treaty tribe" recognized by the U.S. government, his lawsuit says.

Judge Leon declined to give any deference to that conclusion, however, saying the tribal court "exceeded any authority it may hold in issuing that order." Even if valid, the judge added, the Karluk Tribal Court ruling is not binding on federal courts.

"Congress has not delegated the authority to regulate the relationship between Indian tribes and the United States to any tribe," he wrote.

Declining to let Kanam amend his suit, Judge Leon noted that the Pilchuck Nation chairman sought to file a revised version claiming a Seattle federal court had already registered the Karluk Tribal Court's ruling from a decade ago. That assertion, the judge found, "is not mere semantics: Kanam's theory of the case rises and falls with the deference a federal court — or the secretary — should accord the tribal court's order."

"Denial is thus also warranted in light of Kanam directly contradicting his original complaint in an attempt to defeat the secretary's motion to dismiss," he wrote.

On Tuesday, the D.C. Circuit commented that Kanam contends that the tribal court judgment is a decision of a "United States court," but that term "plainly references" the federal courts.

"Moreover, plaintiffs do not explain how a congressional finding in the List Act — describing how tribes previously were recognized — could impose any mandatory duty on Interior," the appeals court said.

Kanam's lawyer did not respond immediately to a request for comment Tuesday. The U.S. Department of the Interior and the BIA also could not be reached.

U.S. Circuit Judges Karen LeCraft Henderson, Gregory G. Katsas and Justin R. Walker sat on the panel for the D.C. Circuit. 

Kanam is represented by Margaret Farid of Roy Farid LLP and J. Nelson Happy.

The federal officials are represented by Mary G. Sprague and John L. Smeltzer of the U.S. Department of Justice's Environment and Natural Resources Division, and by Samuel E. Ennis and John-Michael Partesotti of the Interior Department's Office of the Solicitor.

The case is Kurt Kanam et al. v. Debra Haaland et al., case number 22-5197, in the U.S. Court of Appeals for the District of Columbia Circuit.

The underlying case is Kanam et al. v. Haaland et al., case number 1:21-cv-01690, in the U.S. District Court for the District of Columbia.