Greene
Greene v. Babbitt
Opinion
Lead Opinion
Schroeder, J.
Opinion by Judge SCHROEDER; Dissent by Judge WRIGHT.
The Secretary of the Interior appeals the district court’s decision that the plaintiff group of Samish Indians, and their Chairman, Margaret Greene, receive a formal adjudication under the Administrative Procedure Act, 5 U.S.C. § 554 , to determine whether or not the Samish are entitled to be recognized as a “tribe” by the federal government. The Samish seek such recognition *1269 in order to qualify for various benefit programs for Indians that, since the 1970s, have been made available only to members of recognized tribes. In the district court they successfully challenged the informal procedures the defendant Secretary of Interior established in 1978, see 25 C.F.R. Part 83 (1978), as violative of due process.
In ruling in favor of the Samish, the district court found as a matter of fact that individual Samish had received health and other benefits in the 1970s that were cut off by virtue of the lack of tribal recognition. The district court then ruled as a matter of law that because entitlements depended on tribal recognition, the Samish had established constitutionally protected property interests that entitled them to a…
Dissenting Opinion
Wright, J.
dissenting.
Because United States v. State of Washington, 641 F.2d 1368 (9th Cir.1981), cert. denied, 454 U.S. 1143 , 102 S.Ct. 1001 , 71 L.Ed.2d 294 (1982) (Washington II ), 1 collaterally estops the Samish Tribe’s petition for recognition, I respectfully dissent.
The Board of Indian Affairs procedure for establishing status as a statutory tribe requires a number of factual showings, including:
25 C.F.R. § 83.7 . In United States v. Washington, 520 F.2d 676, 693 (9th Cir.1975), we held that “[w]hether a group of citizens of Indian ancestry is descended from a treaty signatory and has maintained an organized tribal structure is a factual question.” In Washington II, we affirmed the district court’s factual finding that “[the Samish Indi *1276 ans] had not functioned since treaty times as [a] continuous separate, distinct and cohesive Indian culture or political community.” 641 F.2d at 1373 (internal quotation omitted).
Washington II precludes a finding that the Samish Tribe has “maintained tribal political influence or other authority over its members as an autonomous entity throughout history until the present.” 25 C.F.R. § 83.7 (c). Washington II involved the same factual…