MUWEKMA OHLONE TRIBE OF THE SAN FRANCISCO BAY AREA
RESPONSE TO THE FINAL DETERMINATION
BY THE BUREAU OF INDIAN AFFAIRS

The Muwekma Tribe is disappointed by the Final Determination issued on September 9, 2002 by the Bureau of Indian Affairs (BIA) declining to acknowledge our Tribe under its recognition regulations. Unfortunately, the decision comes as no surprise to the Tribe that has suffered for so long from the 152 years of deplorable U.S. Indian policy in California. However, the Muwekma Tribe will not cease its efforts to restore the historic "Trust" relationship with the United States that it once enjoyed and that was unjustly and improperly stripped from it. The Muwekma Tribe vigorously disputes the BIA's conclusion that the evidence submitted did not satisfy the criteria in the recognition regulations. The Tribe submitted to the BIA a substantial amount of new evidence and charted each piece of evidence for each decade and for each criterion spanning the decades from 1900 to the present. However, the BIA in their pre-determined Final Determination decided to either dismiss the submitted evidence or not consider the evidence collectively. Furthermore, the BIA failed to address the Muwekma Tribe's claim that it continues to be recognized since it was previously recognized and has not been legally terminated. In fact, the BIA failed to refute any of the evidence that the Tribe submitted. The Branch of Acknowledgment and Research (BAR) reviewers only decided that the type and weight of evidence, and the "reasonable likelihood" of such evidence, did not meet their impossible-to-meet standards. For example, the BAR rejected the three BIA enrollment periods (1928-1933, 1948-1957, and 1968-1972) in which the landless Muwekma tribal community participated. All of the Muwekma families were approved by the Secretary of Interior, however according to the BIA these legal documents do not constitute any evidence under criteria 83.7 (a) External identification, 83.7 (b) Continuous existence, and 83.7 (c) Political authority, even though the very same reviewers informed the leadership of the Congressionally created Advisory Council on California Indian Policy (ACCIP) in 1995 that the Muwekma Tribe could indeed use such form of documentation as evidence. On August 1, 1995, Dena Magdaleno, Chairwoman of the Recognition Task Force of the Congressionally mandated Advisory Council on California Indian Policy, informed the leadership of the Muwekma Ohlone Indian Tribe in a letter stating: "RE: Update on Previous Recognition Issues for your tribe "As a result of our conversation on July 26, 1995 with Holly Reckord, John Dibbern and George Roth it is my understanding that the Muwekma need to do the following to document any claim of previous recognition relative to the proposed allotment to the Verona Band of Indians: ... "3. In addition to establishing the mandate, you must provide evidence that your tribe is the same group as the Verona Band. "4. It may be possible to use the 1928 Indians of California applications to establish that you are the same group as the Verona Band. ... "5. It was suggested you use another authoritative source (actually 2 were recommended) to substantiate the '28 applications." (Exhibit H, II, Appendix E) Under the concluding section entitled §83.6 General Provisions for the Documented Petition, the 1994 Revised Final Regulations provides the following guidelines to petitioners: "§83.6 General Provisions for the Documented Petition (a) The documented petition may be in any readable form that contains detailed, specific evidence in support of a request to the Secretary to acknowledge tribal existence. (d) .... A criterion shall be considered met if the available evidence establishes a reasonable likelihood of the validity of the facts relating to that criterion. Conclusive proof of the facts relating to a criterion shall not be required in order for the criterion to be considered met. (e) Evaluation of petitions shall take into account historical situations and time periods for which evidence is demonstrably limited or not available. The limitations inherent in demonstrating the historical existence of community and political influence or authority shall also be taken into account. Existence of community and political influence or authority shall be demonstrated on a substantially continuous basis, but this demonstration does not require meeting these criteria at every point in time. Fluctuations in tribal activity during various years shall not in themselves be a cause for denial of acknowledgment under these criteria. (f) The criteria in §83.7 (a) through (g) shall be interpreted as applying to tribes or groups that have historically combined and functioned as a single autonomous political entity. (g) The specific forms of evidence stated in the criteria in §83.7 (a) through (c) and §83.7(e) are not mandatory requirements. The criteria may be met alternatively by any suitable evidence that demonstrates that the petitioner meets the requirements of the criterion statement and related definitions." [Emphasis BIA] (1994:22-24) Notwithstanding its decision declining to recognize the Muwekma Tribe, the BIA confirmed once again in its Final Determination that the United States previously "recognized" the Muwekma Tribe as a tribe under federal law at least as late as 1927. The BIA also confirmed again that 99 percent of the members of the Tribe descend from the prior recognized tribal entity. Furthermore, the BIA failed to address the Tribe's claim that it continues to be "recognized" since it was previously "recognized" and has not been legally terminated. Indeed, the Bureau of Indian Affairs positively confirmed in its Final Determination that the U. S. Congress never terminated the Muwekma Tribe. The Congress has made it explicitly clear that only it has the authority to terminate tribes (see HR 4180 below). The BIA failed to provide any evidence that the Federal government made a formal decision, or took any formal actions, to cease recognizing the Tribe. Nor did the BIA provide any evidence justifying such action or establish its authority to do so. The BIA's refusal to "recognize" the Tribe without addressing the lawfulness or propriety of the agency's prior actions with respect to the Tribe was an error and an infringement of the Tribe's rights and on the authority of Congress. The BIA failed to address the evidence submitted by the Muwekma Tribe of "Gross Negligence," "Crass Indifference" and dereliction of duty by Sacramento Superintendent Lafayette A. Dorrington. Superintendent Dorrington was the principal BIA agent contributing to the demise of the landless Muwekma/Verona Band community when he opined on June 23, 1927 that: "It does not appear at the present time that there is need for the purchase of land for the establishment of their homes." (1927:1) Muwekma provided the BAR copies of official BIA Office memos demonstrating Dorrington's dereliction of duty. For example, Dorrington wrote to Commissioner, Rhoads on April 23, 1930, that: "It has been my opinion, and therefore my belief, for several years that the best interests of the Indians will be served through an arrangement whereby those concerned may be settled on the already acquired land instead of procuring additional which cannot be turn to beneficial use and occupancy by the Indians in mind because of their inability financially to establish themselves thereon." [Emphasis added] "...In its final analysis, Mr. Commissioner, kindly understand and know that additional land for homeless Indians of California is not required and therefore further demands on the appropriation for the fiscal year 1930 are not warranted or justified." Furthermore, the Muwekma Tribe supplied the BIA with additional evidence which the BAR decided it would not include in its review that by July 1931, Dorrington had either quit, transferred or was replaced by O. H. Lipps as Superintendent of the Sacramento Agency. In his letter Superintendent Lipps responded to Assistant Commissioner J. Henry Scattergood with specific concerns about conditions affecting the homeless California Indians for whom land was to be purchased: "Receipt is acknowledged of your letter, dated June 30, 1931, relating to the matter of purchasing land for homeless Indians of California..." "The conditions on some of these rancherias are simply deplorable. No one can view many of them and observe the conditions under which the Indians are trying to exist without the feeling that some one is guilty of gross neglect or inefficiency and that a cruel injustice has been meted out to a helpless people under the name of beneficent kindness. ... And yet there are those who say that it will never do to let the local authorities have charge of the affairs of the Indians lest the Indians be neglected and abused. ..." "Now it seems to me that the thing for us to do is to look at the facts in the face and admit that in the past the Government has been woefully negligent and inefficient, and then start out with the determination, as far as possible, to rectify our past mistakes. It is difficult to locate the blame, but somewhere along the line there appears to have been gross negligence or crass indifference. If Congress has been honestly and fully advised of conditions and has refused or failed to give relief asked for, then the Indian Bureau is not responsible for the neglect of the Indians. On the other hand, if Congress believed and intended by appropriating funds for the purchase of lands for homeless Indians and improvements thereon that good and suitable lands would be purchased and houses constructed and improvements made, then we have neglected to do our duty." The BAR also failed to either address or consider any of the Congressional and legal documents dating after 1985 that was submitted by the Muwekma Tribe as part of its response to the Proposed Findings. These documents include Congressional legislation that addresses the statutory authority of the Secretary of the Interior as defined within the Federally Recognized Indian List Act of 1994 (HR 4180) as well as other determinations and recommendations issued by the Advisory Council on California Indian Policy in their 1997-1998 final reports to the Congress. The Federally Recognized Indian Tribe List of 1994 Act (HR 4180) explicitly states: Title I — Withdrawal of Acknowledgment or Recognition. SEC. 101 Short Title. This title may be cited as the "Federally Recognized Indian Tribe List Act of 1994." .... SEC 103 Findings ... (3) Indian tribes presently may be recognized by Act of Congress; by the administrative procedures set forth in part 83 of the Code of Federal Regulations denominated "Procedures for Establishing that an American Indian Group Exists as an Indian Tribe; or by decision of a United States court; (4) a tribe which has been recognized in one of these manners may not be terminated except by an Act of Congress; (5) Congress has expressly repudiated the policy of terminating recognized Indian tribes, and has actively sought to restore recognition to tribes that previously have been terminated; .... Title II Central Council of Tlingit and Haida Indian Tribes of Alaska ... SEC. 202. Findings The Congress finds and declares that — ... (3) the Secretary does not have the authority to terminate the federally recognized status of an Indian Tribe as determined by Congress; (4) the Secretary may not administratively diminish the privileges and immunities of federally recognized Indian tribes without the consent of Congress; ... The Muwekma Tribe also submitted to the BIA a copy of the September 1997 Advisory Council on California Indian Policy final report to Congress. In that report entitled Advisory Council on California Indian Policy Recognition Report — Equal Justice for California the ACCIP made the following conclusions about Sacramento Agency Superintendent Lafayette A. Dorrington's actions in 1927: "The Dorrington report provides evidence of previous federal acknowledgment for modern-day petitioners who can establish their connection to the historic bands identified therein. Clearly, the BIA "recognized" its trust obligations to these Indian bands when it undertook — pursuant to the authority of the Homeless California Indian Acts and the Allotment Act —to determine their living conditions and their need for land." "The fact that some were provided with land and others were not did not diminish that trust." "Among those California Indian groups that have petitioned for federal acknowledgment, there are several who can trace their origins to one or more of the bands identified in the Dorrington report. The Muwekma Tribe is one whose connection to the Verona Band has been recently confirmed in a letter from the BAR..." [Emphasis added] The BIA informed the Muwekma Tribe in its Final Determination that "[w]hen a Final Determination is negative, the regulations direct that the petitioner be informed of alternatives to this administrative process for achieving the status of a federally recognized tribe, or other means by which the petitioner's members may become eligible for services and benefits as Indians (25 CFR 83.10(n). ... In addition, Congress may consider taking legislative action to recognize petitioners which do not meet the specific requirements of the acknowledgment regulations but, nevertheless, have merit." (page 7-8) [Emphasis added] Finally, under the Summary Conclusions Under the Criteria (25 CFR 83.7) in the Muwekma petition, the BIA determined that: "[t]he review of all the evidence in the record concludes that the Muwekma petitioner has satisfied the requirements of 25 CFR 83.7 (d), (e), (f), and (g). That is, the petitioner's constitution and enrollment ordinance describe its membership criteria and governing procedures, its members have demonstrated their descent from the historical tribe (in this case, from the Verona band last acknowledged by the Federal Government in 1927 and as defined in the Proposed Finding and Final Determination), the group is principally composed of those persons who are not members of another North American Indian tribe, and neither the group nor its members are the subject of congressional legislation expressly terminating or forbidding the Federal relationship." (page 7) [Emphasis added] Even though having "merit" as a historic and previously "Recognized" tribe, according to the BIA, the Tribe does not meet its standard as the BAR subjectively interprets the Recognition Regulations; nonetheless, the Muwekma Tribe will not abandon its quest for its legitimate right to having its Federally Recognized status "restored" which the BIA so unjustly and improperly deprived it over the past seventy-five years. The Muwekma Tribe has now exhausted the administrative process and through that arduous and demeaning process the Tribe encountered the very same "gross negligence" and "crass indifference" with the current BIA bureaucrats and decision makers as it had encountered seventy-five years earlier with Superintendent L. A. Dorrington in 1927. In 1881, the great Indian policy "reformer" and later Special Indian Commissioner, Helen Hunt Jackson, published her scathing report on U. S. Indian Policy entitled A Century of Dishonor. In that landmark critique Jackson wrote: "There are hundreds of pages of unimpeachable testimony on the side of the Indian; but it goes for nothing, is set down as sentimentalism or partisanship, tossed aside and forgotten. "President after president has appointed commission after commission to inquire into and report upon Indian affairs, and to make suggestions as to the best methods of managing them. ... These reports are bound up with the Government's Annual Reports, and that is the end of them." ...(page 338) One hundred and seventeen years later, in 1998 the ACCIP completed its charge to report back to the Congress on the issues confronting California Indian tribes and the Federal Recognition Process. Copies of the ACCIP final reports were submitted to the BIA by the Tribe as part of its response to the BAR's Proposed Findings. In their Final Determination the BAR made clear that it would not review any evidence prior to 1927 and after 1985. The BAR staff wrote: "Given these conclusions of the Proposed Finding under criterion 83.7(a), that the period prior to 1927 is outside the period to be evaluated and that the petitioner met this criterion during the period after 1985, it is not necessary to respond to the petitioner's comments and arguments for those two time periods." (page 9) Thus the ACCIP reports, and in the case of the reports from earlier commissions have essentially been "tossed aside and forgotten" by both the Congress and the Bureau of Indian Affairs. The Muwekma Tribe is now examining its options for responding to the Final Determination — the BIA's Final Solution to rid the United States of legitimate historic tribes. Makse Xata-mu At-cun Atuemi Muwekma-mak! United We Will Fight To Make Things Right For Our People! Now that the Muwekma Tribe has exhausted the administrative process, if you have a desire to help in the Tribe's efforts, please email and/or call your Congressional representatives and send them a copy of this press release. Please voice your concern and seek their support for proposed legislation for the Tribe's "restoration" as a Federally Recognized tribe. If you have any questions regarding this press release, please call the Muwekma Ohlone Tribal office at (408) 441-6185, or e-mail us at Muwekma@muwekma.org.