Briefing Document Reaffirming the Federal Status of the Muwekma Ohlone Tribe Executive Summary The Muwekma Ohlone Tribe, indigenous to the San Francisco Bay Area, has been unjustly denied federal recognition despite a well-documented history of continuous existence and prior federal acknowledgment. Identified by the Bureau of Indian Affairs as the Verona Band of Alameda County in 1905, the Tribe was federally recognized in congressional acts in 1914, 1923, and 1927. It’s ancestral homeland spans San Francisco, San Mateo, Santa Clara, Alameda, Contra Costa, and parts of Napa, Santa Cruz, Solano, and San Joaquin counties. Despite enduring Spanish missionization, forced labor, and American-era dispossession, the tribe maintained its cultural identity and community cohesion. In 1927, the Superintendent of the BIA’s Sacramento Agency, Lafayette Dorrington, unilaterally began to administratively discard the Tribe without Congressional approval, an action that lacked legal authority and violated the tribe’s trust relationship with the United States. The Muwekma Ohlone have never been legally terminated by an Act of Congress, a fact affirmed by the U.S. District Court in Muwekma Ohlone Tribe v. Kempthorne (2006), which stated that “neither the United States Congress nor any executive agency ever formally withdrew federal recognition of the Verona Band.” Evidence of Continuous Existence The Muwekma Ohlone Tribe meets all criteria for federal recognition under the Bureau of Indian Affairs (BIA) regulations (25 CFR Part 83). Key evidence includes: 1. Historical Recognition: On May 24,1996, the federal government’s Office of Federal Acknowledgement (OFA), concluded that the federal government had previously unambiguously recognized the Muwekmas’ ancestors as the Verona Band and that present day Muwekma membership at the time of the determination was comprised of living members and direct descendants of the Verona Band. It is a basic principle of federal Indian law that tribal governing authority arises from a sovereignty that predates the establishment of the United States, and that once recognized as a political body by the United States, a tribe retains its sovereignty until Congress affirmatively acts to divest that sovereignty. 2. Continuous Community: The BIA’s 2002 Final Determination acknowledged that 100% of current Muwekma members descend directly from the historically recognized Verona Band, confirming genealogical continuity. An anthropological report by Dr. Christine Grabowski titled The Origins and Continuity of the Muwekma Ohlone Tribe published in 2020 details the Tribe’s social and political continuity from precontact to present day. 3. Continuous Federal Jurisdiction: It is important to note that notwithstanding Dorrington’s unilateral actions removing the tribe from the list of tribes to receive land under the Congressional 1927 appropriations act, the Tribe continued to be under jurisdiction of the Sacramento Indian Agency after 1927, most notably evidenced by the tribe’s members attending Indian boarding schools up until 1947 and the tribe’s members enrolling and being accepted under jurisdiction by the department of Interior under the California Claims Act, between 1929 and 1932, 1948 and 1955 and 1968 and 1972 4. Scientific Evidence: A 2022 DNA analysis conducted by Stanford University and University of Illinois researchers was published in the Proceedings of the National Academy of Sciences conclusively confirmed genetic links between 2,000-year-old burial remains in the Bay Area and every member of the Tribe’s Tribal Council. The Advisory Council on California Indian Policy (ACCIP) was established by the U.S. Congress in 1992 to study the unique challenges faced by California Indian tribes, particularly regarding federal acknowledgment and socio-economic conditions. It was tasked with developing recommendations for policy changes to address these issues. The Council was composed of representatives from federally recognized, terminated, and unacknowledged tribes. In 2000, the ACCIP recommended reaffirming the Muwekma Ohlone’s status, a recommendation echoed by state and local leaders. In 2023, the Chancellor of the University of California at Berkeley called on the Senate Indian Affairs Committee to affirm the Tribe’s federal status so that the institution could comply with the Native American Graves Protection Act and repatriate its over 12,000 ancestral remains that are culturally affiliated to the Muwekma Ohlone Tribe.
Legal Arguments The Muwekma Ohlone Tribe has a compelling legal basis for reaffirmation of its federal recognition. This document outlines the legal arguments supporting reaffirmation through either administrative corrective action by the Department of the Interior or congressional affirmation, grounded in federal law, judicial precedent, and the United States’ trust responsibility. 1. Historical Federal Recognition and Unlawful Termination The federal government established a trust relationship with the Tribe when it was previously unambiguously recognized by the BIA as the Verona Band of Alameda County in 1905, and affirmed by Congress in 1914, 1923, and 1927. The BIA erred in omitting the Tribe from the official list of federally recognized tribes when it was first drafted in 1978 when the regulations governing the Part 83 Federal Acknowledgement process were first promulgated. The Secretary of the Interior and Assistant Secretary of Indian Affairs have the power to correct this mistake and add the Tribe to the list. • Judicial Affirmation of Sovereign Immunity: In Weiss v. Perez (2022), a federal district court judge in the Northern District of California affirmed that the Muwekma Ohlone Tribe has retained its sovereign immunity despite not being on the BIA’s official list. • Judicial Determination: In Muwekma Ohlone Tribe v. Kempthorne (2006), the U.S. District Court for the District of Columbia ruled that “neither the United States Congress nor any executive agency ever formally withdrew federal recognition of the Verona Band.” This confirms the 1927 action was legally invalid, as only Congress has the authority to terminate tribal recognition under the U.S. Constitution’s Commerce Clause (Art. I, § 8, cl. 3). • Trust Responsibility: The federal government’s trust responsibility to Indians obligates the United States to protect tribal sovereignty and rights. The Muwekma Ohlone, as a previously recognized tribe, was never lawfully severed from this trust relationship with the United States. • Administrative Corrective Action: The Department of the Interior has the authority to correct administrative errors under its general powers (43 U.S.C. § 1457). Reaffirming the tribe’s status would rectify the BIA’s wrongful omission of the Tribe from its list of recognized tribe when it was first drafted in 1978, consistent with the Administrative Procedure Act (5 U.S.C. § 706), which allows agencies to correct actions found to be “arbitrary, capricious, or otherwise not in accordance with law.” • Congressional Affirmation: Congress has plenary power over Indian affairs and can reaffirm the tribe’s status through legislation, which it has done 26 times since the Part 83 federal acknowledgement process was first promulgated in 1978. The last Tribe to be recognized by Congress was the Little Shell Band of Chippewa Indians in 2019. The Little Shell recognition bill was attached as a policy rider to the National Defense Reauthorization Act. Like the Muwekma Ohlone Tribe, Little Shell was also denied recognition through the Part 83 process on the same criteria of continuity. 2. Precedent for Administrative Reaffirmation The Department of the Interior has restored federal recognition for tribes with prior acknowledgment without requiring the full BIA acknowledgment process (25 CFR Part 83), providing a clear precedent for administrative corrective action. Authority for Reaffirmation of documented historic tribes has been upheld under 25 CFR § 1.2 § 1.2 Applicability of regulations and reserved authority of the Secretary of the Interior. The regulations in chapter I of title 25 of the Code of Federal Regulations are of general application. Notwithstanding any limitations contained in the regulations of this chapter, the Secretary retains the power to waive or make exceptions to the regulations as found in Chapter I of title 25 CFR in all cases where permitted by law and the Secretary finds that such waiver or exception is in the best interest of the Indians. • Case Examples: The Lower Lake Koi Tribe, the Ione Band of Miwok, and the Tejon Tribe were reaffirmed through administrative action by the Department of the Interior after evidence confirmed their prior recognition and wrongful exclusion from the Federal Register. The Muwekma Ohlone’s case is analogous, with documented recognition as the Verona Band and continuous existence. • BIA Regulations: While 25 CFR Part 83 governs new recognition, tribes with prior federal acknowledgment, like the Muwekma Ohlone, are eligible for reaffirmation outside this process. The BIA’s 2002 denial of recognition, which cited insufficient evidence of continuity post-1927, was flawed, as it ignored genealogical records linking 99% of current members to the Verona Band and evidence of community cohesion. The BIA’s refusal to consider evidence of the Tribe’s existence prior to 1927 or after 1985 fundamentally undermined the Tribe’s petition to demonstrate social and political continuity. • Judicial Support: The Kempthorne ruling criticized the BIA’s inconsistent application of criteria, noting that the agency applied stricter standards to the Muwekma Ohlone than to other tribes. This supports administrative correction to align with equitable treatment under the law. 3. Congressional Authority to Reaffirm Congress has the constitutional authority to reaffirm the Muwekma Ohlone’s status, bypassing the BIA process, to correct a historical injustice and fulfill federal obligations. • Plenary Power: The Indian Commerce Clause grants Congress broad authority to regulate tribal affairs, including recognizing or reaffirming tribes (United States v. Lara, 541 U.S. 193, 2004). Congressional reaffirmation would be a direct exercise of this power. • Legislative Precedents: Congress has repeatedly restored tribes through legislation, such as the Menominee Indian Tribe Restoration Act (25 U.S.C. § 903) and the Coquille Restoration Act (25 U.S.C. § 715), along with 26 others since 1978. These acts reaffirmed tribes without requiring the BIA process, recognizing historical recognition and ongoing tribal identity. 4. Violations of Due Process and Equal Protection The BIA’s 2002 denial of recognition violated the Muwekma Ohlone’s due process and equal protection rights, justifying immediate reaffirmation to remedy procedural unfairness. • Due Process: The Fifth Amendment guarantees due process in federal actions. The BIA’s 2002 decision was tainted by bias, as staff involved in opposing the tribe’s Kempthorne lawsuit influenced the outcome, failing to thoroughly review evidence of continuity. This procedural flaw warrants administrative correction under 5 U.S.C. § 706. • Equal Protection: The BIA applied inconsistent standards, demanding more rigorous evidence from the Muwekma Ohlone than from other tribes, such as the Jena Band of Choctaw, recognized with less documentation. This disparate treatment violates equal protection principles under the Fifth Amendment’s implied equal protection clause (Bolling v. Sharpe, 347 U.S. 497, 1954). • Remedy: Reaffirmation, either administratively or congressionally, would correct these violations, ensuring the tribe’s rights to fair treatment and recognition of their documented history. • Changes of Law: The Department now acknowledges that tribal members attendance at BIA schools were part of the “federal Indian policy aimed at breaking up tribal communities across the country” and “provides probative evidence of federal jurisdiction over the Tribe and its members.” This new standard affirms the Muwekma Ohlone Tribe’s federal recognition to 1947. 5. Fulfilling the Federal Trust Obligation to Indians Reaffirming the Muwekma Ohlone’s status is a legal and moral imperative to fulfill the federal government’s trust responsibilities and address historical wrongs. The federal trust responsibility, articulated in cases like Seminole Nation v. United States (316 U.S. 286, 1942), obligates the government to protect tribal rights and resources. The Muwekma Ohlone’s wrongful exclusion from the official list of recognized tribes in 1978 deprived it of access to federal benefits, including healthcare, education, and other rights, in violation of this obligation. Administrative corrective action by the Department of the Interior or congressional affirmation offers clear legal pathways. The BIA’s flawed 2002 denial violated due process and equal protection, further justifying immediate action. Reaffirming the tribe’s status will restore its sovereignty, rectify historical injustices, and fulfill the United States’ legal and moral commitments.