SAN JOSE — In a crucial hearing in a local Indian tribe’s lawsuit against the U.S. government Thursday, a federal judge peppered the tribe’s attorney with tough questions about its legal standing and whether it had waited too long to sue for tribal recognition.
The hour-long hearing in U.S. District Court Judge Edward Davila’s courtroom in San Jose was dominated by the back-and-forth between Davila and attorney Joseph Kitto, representing the Mishewal Wappo Tribe of Alexander Valley in Sonoma County.
Davila took the case under submission at the hearing’s close; a ruling is expected later. Both the tribe and the U.S. government are trying to win the lawsuit through competing motions for summary judgment.
About 70 people sat in on Thursday’s hearing, mostly members of the Wappo tribe, which is based in Santa Rosa.
A tribal victory could have sweeping ramifications in Napa County, which has long feared that the tribe regaining federal recognition could lead it to pursue building a casino within the county’s boundaries.
The tribe has called a casino “an option” among many it would consider for economic development.
But the Wappo would have to win the recognition lawsuit first. The questions from Davila suggested he wasn’t overtly sympathetic to the tribe’s positions in the case.
“What’s your clients’ injury in fact?” Davila asked of Kitto. “Why do your clients feel they are the appropriate people to bring this lawsuit?”
The basis for the tribe’s case dates back to the 1930s, when 14 Indians living on a piece of property in the Alexander Valley called a rancheria voted as part of the Indian Reorganization Act of 1934.
The tribe claimed that those votes constituted the federal government bestowing the tribe federal recognition. The plaintiffs claim to be descendants of the original 14 voters, Kitto told the judge.
In the 1950s, the federal government passed the California Rancheria Act that began a process of dismantling the rancheria system in California. That entailed tracking down members and divvying up the lands in exchange for votes terminating their relationship with the government.
At the Alexander Valley rancheria, the government found a non-tribal member, James Adams, and later a Wappo Indian, William McCloud, who voted to terminate in exchange for splitting up the land.
The tribe contends the federal government acted illegally in terminating recognition, but the government counters that it followed the letter of the Rancheria Act.
Davila focused the first portion of the hearing on the issue on whether the tribe had legal standing to bring the case, questioning Kitto if the 1934 vote originally established recognition. The original 14 voters didn’t do anything further in organizing as a tribe with the federal government, Kitto acknowledged.
"Can you tell me when the Wappo tribe was formally recognized?” Davila asked. “Those 14 didn’t do anything in furtherance of the (Reorganization Act)?”
Kitto responded that recognition wasn’t as formal a process as it today, but the vote did establish a relationship with the U.S. government. Voting under the Recognition Act is considered a “universal” benchmark for determining recognition, Kitto argued.
As for further organization, Kitto countered that the government made no attempt to continue working on that with the 14 voters.
“There’s no constitution charter because the (Bureau of Indian Affairs) never came back,” Kitto said. “They never came to the government and the government never came to them.”
David Glazer, an attorney representing the U.S. government, said that the Rancheria Act was limited in scope, focusing on the relationship between the government and distributees of the rancherias, not a broader tribal entity.
“What the act did was terminate a small group of people,” Glazer said. “The act didn’t purport to terminate a tribe. It purported to terminate a program that provided a service.”
Glazer cited as proof of this the Federal Register’s notice in 1961, stating that Adams and McCloud had voted to terminate.
"The register is very clear,” Glazer said. “It’s not terminating the Mishewal Wappo tribe.”
Davila noted the register’s language.
“What’s listed here is not the Wappo tribe,” Davila said. “The names of individuals are listed here. That’s what was posted in the register.”
After discussing standing, the hearing shifted to the statute of limitations issue. Federal law governs that, barring some exceptions, lawsuits must be filed against the U.S. government within six years.
In the Wappo’s case, the federal government argues that this means the statute of limitations expired in the 1960s, after the vote to terminate and the printing in the Federal Register.
Following that, the tribe was part of a larger lawsuit, called the Tillie Hardwick case filed in 1979, of tribes suing the U.S. government to regain recognition. The Wappo tribe was not part of that lawsuit when it was ultimately settled in the 1980s.
Davila questioned why the tribe didn’t file another lawsuit after the Tillie Hardwick case was settled.
Kitto replied that the tribe was focused on working with the Bureau of Indian Affairs on an administrative petition, which led a former director to testify that the tribe should be restored.
The tribe has said it decided to file suit after its administrative attempts had failed, although Glazer argued that it hadn’t exhausted all of its avenues.
“The process is broken, even Congress has acknowledged that,” Kitto said.
Davila asked if they were discouraged from going to court, and Kitto said they hadn’t been. They had only placed their faith in the federal government that it would restore recognition.
“The defendant has led us to believe we would see the light,” Kitto said in his closing statement.
Glazer was brief in his closing remarks.
“It’s the wrong plaintiff seeking the wrong relief,” Glazer said.