TRUTH and JUSTICE
For the Muwekma Ohlone People
By shedding light on a corrupt, politicized, and broken process for the recognition of American Indian Tribes as sovereign nations, the below information is an attempt to give justice to a people who have suffered a century of injustices at the hands of indifferent, negligent, and dysfunctional government institutions.
Justice can come in many forms but only through "Truth" can you achieve "Justice". And to speak "Truth to Power", you must first "Know the Truth".
The effects of White European contact with the indigenous population in California is well known. The fact that the Muwekma people were treated like slaves and property is not news. The fact that they were left landless and homeless after the secularization of the Missions is not news. The fact that the first Governor of California waged a "war of extermination" against the indigenous population is also not news.
But we will not be recounting the hundreds of years of pain, suffering, and trauma that continues to affect the current day Muwekmas. Below, we will only focus on the specific issue of Muwekma's federal recognition. We will shed light on the actions of a negligent and indifferent Indian Agency which has led to Muwekma's sovereignty being questioned and being denied.
To start -
What does it mean for an American Indian Tribe to be federally recognized?
Federal recognition does not create tribes. It recognizes social/political communities that predate the United States.
Federal recognition creates a trust relationship between a tribe and the federal government, which entitles tribes and our members to certain federal benefits and triggers the operation of a whole body of U.S. law involving respect for tribal sovereignty including the protection and repatriation of our ancestral remains. In essence, it legitimatizes our RIGHT of Self- Determination as a Sovereign people on our own Lands.
When tribes are asked why it is so important to be federally recognized, the reason most often cited is that right of self-determination.
Muwekma Chairwoman, Charlene Nijmeh -
"The white man's philosophy (kill the indian, save the man) stressed the killing of everything we were inside until all that was left was a shell without a spirit. Our rights as a sovereign people to choose our own path have historically been ignored. Our culture, traditions, language, belief systems, and even our children were stolen from us. All these attacks on our sovereignty were because the lands we inhabited were too valuable."
"We must restore our sovereignty in order to ensure our traditions, culture, and language survive and do not come under attack once again."
"I do not believe any tribe is safe from attacks on sovereignty. In this country we have cycles of politics that swing from policies of strengthening tribal sovereignty to policies of diminishing or exterminating tribal sovereignty. We must forever be vigilant and be wary of losing what was promised in perpetuity"
*Tribal nations ceded millions of acres of land that made the United States what it is today and, in return, received the guarantee of ongoing self-government on our own lands.
How does a Tribe get status as a federally recognized tribe?
In March 1975, the Senate Select Committee on Indian Affairs established the American Indian Policy Review Commission (AIPRC) to conduct a comprehensive review of the historical and legal relationship of the United States with American Indians.
The Commission's "Final Report" stated,
Trying to find a pattern for the administrative determination of a federally
recognized Indian tribe is an exercise in futility.... The distinction the Department of Interior draws between recognized and unrecognized tribes seems to be based merely on precedent - whether at some point in a tribe's history it established a formal political relationship with the Government of the United States. The procedure was subject to an accident of history.
Although many tribes were historically recognized by means of treaties, not all tribes had hostile relations with the federal government that required a treaty resolution. Moreover, the treaty-making process itself was terminated in 1871. But another basis of recognition was when Congress mentioned a specific tribe in its legislative provisions.
** the AIPRC also noted that before the passage of the Indian Reorganization Act (IRA) in 1934, the Department did not even use the term "federally recognized tribe." Instead, it had only referred to a tribe or band as being "under federal jurisdiction."
The AIPRC's "Final Report" included findings and recommendations that led to the codification of an administrative process (25 CFR 83) to "acknowledge" the existence of non- recognized tribes - i.e., those tribal groups which had, for various reasons, not been federally recognized previously or officially terminated.
The terminology of the administrative process preserved the distinction between "recognition" which remained with Congress or by Executive Order and "acknowledgement" of a tribe's "existence," which was to be determined administratively by the Department of the Interior.
Muwekma Chairwoman, Charlene Nijmeh -
"The process they created in 1978 called the Federal acknowledgment process (FAP) was only created to acknowledge those tribes who had never been recognized by the government. OR those that were recognized but had their status officially terminated. Muwekma was recognized by Congress in the early 20th century and our tribe was never officially terminated so it never made sense why the Bureau of Indian Affairs (BIA) would ask us to go through the FAP process which was designed to acknowledge the existence of a tribe. But we did not need to be "acknowledged", the BIA had already conceded that we were recognized by Congress and never terminated so Why is it not obvious WE ARE STILL HERE?"
How and When did Muwekma become "recognized"?
Muwekma's existence and identity do not depend on federal recognition or acknowledgment. The community (the people) make up the tribe and Muwekma was a tribal community long before the Federal Government recognized us.
The Muwekma Ohlone Tribe TODAY is comprised of all the known surviving American Indian Lineages aboriginal to the San Francisco Bay Region who trace their ethno-historic origins from the indigenous tribes who continuously occupied these lands for over 10,000 years. Upon arrival of the Spanish, in the late 1700s, all Muwekma ancestors were involuntarily confined at three Bay Area missions (Mission San Jose, Mission Santa Clara, and Mission Dolores).
After the secularization of the Missions in 1834, most of the Mission Indians who were rounded up from outside the Ohlone speaking territories left the area returning to their non-Ohlone villages, but those who remained in former-Ohlone speaking territory coalesced into a distinct community living on two Indian rancherias in Pleasanton and Niles where they were able to revive indigenous cultural practices such as the sweat lodge and ceremonial dances. They were comprised of those who came from Ohlone-speaking villages, but also Miwok, Yokuts, Wappo, and Patwin-speaking tribes. These two rancherias were very close to each other and formed a single distinct community that was well known locally.
In 1906, Muwekma ancestors were identified as a distinct community living on those two rancherias in Pleasanton and Niles and included in a census ordered by Congress of landless California Tribes.
Being identified on the 1906 census and thereafter being named in 1914, 1923 and again in 1927 on a list of Tribes to receive land by Congress effectively gave the Muwkma people "recognition" as an American Indian Tribe.
The Bureau of Indian Affairs (BIA) has acknowledged that the American Indian Band that was referred to in agency records as "Verona Band" was federally recognized when the agency identified the Verona Band in 1914, 1923 and again in 1927 as one of the tribes eligible for homesite land purchases under the Congressional Appropriations acts of 1906, 1908 and later years.
In 2000, The Agency has also acknowledged that the Muwekma Ohlone Tribal members are either 100% directly descendent from the Verona Band or actual living members of the Verona Band. Thirteen members of the historic Verona Band were alive and enrolled in the Muwekma Ohlone Tribe at the time the tribe submitted their petition.
Muwekma Chairwoman, Charlene Nijmeh -
"The fact that our tribe was made up of the same people of the Verona Band (or their children or grandchildren) when we asked the government to clarify our status in the early 1980s should be enough to prove our existence."
"It is shameful that nothing has changed in the treatment of my people. Even today, we are being ignored as if we are less than others. The evidence of our existence is our people staring right into the faces of our oppressors asking them to open their eyes and see us. Our voices screaming to be heard should be enough to prove our existence."
"But sadly, Injustice continues to plague my people. Special interest, politics, and conflicts of interest within the BIA continue to blind those in power who seek to finally exterminate us from their lands so never again will they be troubled with our existence"
Muwekma was previously "recognized" without a question so after 1927 was the tribe's status ever terminated by Congress or by the administration?
The answer is clear that NO official termination of the tribe's status happened either by Congress or by the administration.
There was no official list of recognized tribes until 1978. Prior to this list, there was no clear position on the status of the Muwekma tribe, or on the status of many other tribes for that matter who had been ignored or denied services by the government. In fact, Muwekma should have been placed on this first official list since the tribe was recognized, and never terminated along with other California tribal bands (Ione Band of Miwoks, Lower Lake rancheria, and Tejon Band) who were all left off this first 1978 list. The BIA had failed its obligation to many American Indian tribes but especially the smaller landless bands in California.
When Muwekma sought to clarify its status in the 1980's soon after realizing their status as a tribal community was in question, the BIA refused to acknowledge the tribe's existence.
That began the battle over our identity and existence as a sovereign people.
In 2001, The Agency responded to U.S. District Court Justice Ricardo Urbina's question regarding the tribe's status. The lawyers for the department stated "There is no evidence that the Muwekma tribe was "illegally" or "inadvertently" removed from recognized status, .... Instead, it appears that the relationship between the Federal government and the Verona Band, to which the plaintiff now claims to be the successor, simply withered away after the 1920's for reasons yet to be determined by the BIA
The BIA had no rational explanation as to how or even when Muwekma's recognized status ceased to exist. They find no evidence that Muwekma's status was ever terminated by Congress or by administrative action.
They of course do not want to admit that they officially or even as they state "inadvertently" terminated Muwekma's status because that would have been "illegal termination" since only Congress can officially terminate the recognized status of a tribe.
So how do they explain not placing the tribe on the first official list of recognized tribes in 1978? They claim that we the people withered away. That we the people stopped being a tribal community by our own choice.
Muwekma Chairwoman, Charlene Nijmeh -
"The BIA ignores the fact that we have evidence of our tribal community dating back hundreds of years before the mission period all the way to present day. The BIA has acknowledged that there is evidence of our tribal community up until 1927 (when we were on a list to receive land) and then they also acknowledge we had sufficient evidence of our community from 1965-1971 (when our people were fighting to save our Ohlone cemetery). And of course, they must acknowledge we are a tribal community in 1984 to present day because our leaders are actively requesting clarification of our status. And let's not forget they accepted our members in the 1930's and 1940's as being under federal jurisdiction. They accepted our children in Indian boarding schools up until 1947 (which is also a form of federal jurisdiction)"
"So, the argument is that we existed together for hundreds of years until 1947 (the last year we had evidence of federal services to our people), then we disbanded right after but reorganized again in 1965 to save our cemetery and then disbanded again in 1971 and then reorganized again in 1984."
"The idea that our people spent hundreds of years surviving together.
God parenting and God fostering each other's children, surviving enslavement, genocide, and dispossession of our lands, organizing each other to find work and continue to reside near each other in our 10,000-year-old ancestral homeland and then we simply stopped existing as a community just because they stopped paying attention to us in the 1950s is not credible by any reasonable mind"
Since a Tribe's sovereignty is granted in perpetuity unless terminated by Congress and Muwekma's status was never officially terminated, how does the BIA justify that Muwkma must now prove to the BIA that not only does it exist today but that it has existed continuously since the point of last recognition to present day?
Tribal sovereignty is recognized and protected by the U.S. constitution, Supreme Court legal precedent, and treaties, as well as principles of human rights. The fundamental idea of tribal sovereignty is that Indian nations pre-exist the United States and although their sovereignty may have been diminished, they have not been terminated. Therefore, if a Tribe does not voluntary relinquish that status (by disbanding or assimilating) and it is not officially and legally terminated, then how is that government to government relationship lost?
The government and the courts have ruled that tribal nations can cease to exist on their own. Below is from Muwekma's lawsuit challenging the BIA's negative determination on Muwekma's petition to restore its status.
... "[i]t is . . . obvious that Indian nations, like foreign nations, can disappear over time . . . whether through conquest, or voluntary absorption into a larger entity, or fission, or dissolution, or movement of population." Should a tribe cease to exist, it follows that the federal government would no longer have a trust relationship with that entity. See id. at 350 ("If a nation doesn't exist, it can't be recognized"). The Muwekma thus needs to demonstrate it did not cease to exist after 1927, and the manner in which the Muwekma is required to prove its existence as a tribe is through the Part 83 procedures.
Muwekma Chairwoman, Charlene Nijmeh -
"So, the position of the government lawyers and the courts is that it is our burden to prove something that didn't actually happen. (They want us to prove we did not cease to exist after 1927).
First, they would have us believe Indian nations disappeared freely and at will. They don't mention Indian nations disappear when they (the government) have policies of extermination in place for centuries. Or when they follow policies of termination to assimilate tribes rather than honor their treaties and promises of land and sovereignty.
Second, they don't consider that once the department recognized the tribe in 1906 and later years as being under its jurisdiction (under its care and supervision) it had a duty to support and preserve the tribe and it lacked the authority to withdraw from the trust relationship. But rather than support and preserve the tribe, the department refused to buy land for Muwekma in 1927 as was mandated by Congress, even though our people were landless, homeless, and destitute. The land was too valuable in the SF Bay Area, and they likely hoped that without a land base my people would die (either physically or culturally). Land dispossession is a common tactic of occupiers and conquerors. If they succeeded in killing our culture, language, traditions, and beliefs, then they believed we would assimilate into their population. They purposefully tried to exterminate and politically erase us but if we happened to survive then we must prove to them we survived.
Third, it's not enough that our people are alive and thriving as a tribal community today. It's not enough that we had 13 members from the 1927 historic tribe who were still alive and enrolled in Muwekma when we petitioned in 1989 to have our status clarified and restored.
Fourth, we actually DO have evidence showing our existence from 1927 to present day and we submitted 6 linear feet of documentation supporting our existence, but nothing will ever satisfy the department when its mind is made up. It is not about evidence to them. It is about how their lawyers can come up with arguments to claim the evidence is not strong enough or the evidence points to individual rather than tribal existence. They demand definitive proof when the regulations clearly do not require definitive proof as stated below:
A petitioner, however, is not required to provide conclusive evidence under each of the Part 83 criteria; rather, a "criterion shall be considered met if the available evidence establishes a reasonable likelihood of the validity of the facts relating to that criterion." Id. Furthermore, the Department, in evaluating a petition, is required to "take into account historical situations and time periods for which evidence is demonstrably limited or not available." 25 C.F.R. § 83.6(e).
They not only did NOT use the reasonable likelihood standard, but they also demanded evidence of continuity at every point in time. The regulations REQUIRE the department take into account historical situations that make it difficult to supply evidence. The department is requesting evidence of our existence right after 1927. During that period we faced the Great Depression 1929-1933 and World War II -1939-1945 (where all Muwekma men went to war to defend America only to return to find not gratitude but betrayal, neglect, and indifference) and right after World War II, we faced the Indian termination era from the mid-1940s to the1960s where the policy of the United States was to assimilate Native American into mainstream American society.
Regardless of all the above historical difficulties and the neglect of the BIA not buying us a land base to have a secure place to live as a community, we survived because of the strength and closeness of our community and because our leaders guided us and kept us together. But the BIA still ignore our clear and convincing evidence of social/political continuity.
The BIA is not a friend to the Muwekma people. In their analysis of our petition, they acted in an adversarial manner as if it were their job to win a court case rather than fairly assess our evidence and determine the truth to achieve a just outcome.