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Law
Court rejects federal recognition for Delaware Tribe


The federal government's decision to recognize the Delaware Tribe of Oklahoma as a distinct political entity was "unlawful," an appeals court ruled on Tuesday.

In a 30-page decision, the 10th Circuit Court of Appeals said the Department of Interior misinterpreted history when it restored the federal status of the Delaware Tribe. An 1866 treaty made the Delawares citizens of the Cherokee Nation, not of their own separate tribe, the judges noted.

"We are not unsympathetic to the Delawares' cause," Judge Bobby R. Baldock wrote. "The DOI's unlawful actions, however, cannot provide the Delawares the status they seek."

The ruling is a victory for the Cherokee Nation, which has long resisted the notion of separate sovereignty for the Delaware Tribe, pointing to the treaty and an 1867 agreement in which the Cherokees sold land to the Delawares. The U.S. Supreme Court on two occasions has upheld this interpretation.

But Delaware leaders say they never gave up their separate status even after joining the much-larger Cherokee Nation. The Delawares have a distinct culture, language and history, and were treated as a sovereign up until 1867.

During the Clinton administration, the Bureau of Indian Affairs sided with the Delawares. In 1996, then-assistant secretary Ada Deer said the tribe was "independent" of the Cherokee Nation, retracting a 1979 letter that said the BIA would not treat the tribe as its own political entity.

But the 10th Circuit concluded Deer's decision was troublesome in two principal ways. First, it was "contrary" to the Supreme Court's interpretation of history, the court said, because the Delawares have been "incorporated into" the Cherokee Nation as "native citizens."

"The agency's decision to extend recognition to the Delawares rested on an alleged 'comprehensive legal analysis; that devoted three sentences, in a footnote, to the Supreme Court's decisions interpreting the 1866 Cherokee Treaty and 1867 agreement," Baldock wrote.

Second, the court said the BIA didn't follow its own rules. Normally, groups seeking federal recognition must submit a petition and documentation to prove their case, or the BIA must waive this process. That never happened with the Delawares, the judges noted.

"The DOI used a procedure heretofore unknown to the law -- 'retract and declare" -- to purportedly re-recognize the Delawares," the court wrote. "In so doing, the DOI's actions were arbitrary and capricious."

In a second opinion, Judge Stephanie K. Seymour wrote to agree with the outcome of the case. She said the Delaware Tribe "abandoned its tribal sovereignty" in the 1867 agreement.

But she said she didn't agree with the way the other two judges on the panel discussed the treaty and the agreement. She said they discounted evidence that the BIA continued to deal with the Delawares as a separate tribe even after 1867.

"I write separately because I believe the majority unnecessarily denigrates the contrary position of the Delaware Tribe and the Department of Interior, which rely on the long and proud history of the Delaware Tribe’s relations with the federal government to argue that the tribe maintained its tribal sovereignty," she said.

Despite the negative decision, the court left open the possibility that the Delaware Tribe could prove its federal status in another way. The tribe could point to acts of Congress or other dealings with the federal government, for example.

In a similar case, Congress passed a law to recognize the separate status of the Shawnee Tribe, whose members had also been incorporated into the Cherokee Nation. The law, signed by former President Bill Clinton in December 2000, gives the Cherokee Nation veto authority over land-into-trust, jurisdiction and other actions of the Shawnees.

Yesterday's ruling is the first time a court has overturned the BIA's recognition of a tribe, a development that could have nationwide impacts. Republicans in Alaska are challenging Deer's decision to recognize more than 200 tribes there, and officials in Connecticut are battling the BIA over the recognition of two tribes in the state.

The Delaware Tribe is trying to reclaim lands in Pennsylvania, its ancestral homeland, and Kansas, where its ancestors lived before being removed to Oklahoma. Although no decisions have been made, the 10th Circuit said any actions the BIA takes based on the tribe's separate recognition are "void."

The Delaware Tribe is separate from the Delaware Nation, also based in Oklahoma. The Delaware Nation filed a court case in Pennsylvania seeking land for a casino.

Get the Decision:
Cherokee Nation v. Norton (November 16, 2004)

Lower Court Decision:
Cherokee Nation v. DOI (7/23)

Relevant Documents:
Federal Register Notice/Ada Deer Announcement (September 1996)

Relevant Links:
Delaware Tribe of Indians - http://www.delawaretribeofindians.nsn.us
Cherokee Nation - http://www.cherokee.org