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Samish Nation wins round in federal funding fight
Monday, August 22, 2005

A Washington tribe whose rights have been denied for more than 30 years won a court victory on Friday in a long-running dispute with the federal government.

Samish Nation ancestors signed the 1855 Treaty of Point Elliott but the tribe hasn't received any of its benefits, including fishing rights and federal funding. In 1969, the Bureau of Indian Affairs failed to include the tribe on the list of federally recognized entities for reasons that remain unclear to this day.

After a lengthy court battle with the BIA, the tribe finally got back on the list in 1996. Since then, it's been a constant struggle to gain full recognition as a sovereign government, tribal leaders have said.

A unanimous decision from the Federal Circuit Court of Appeals could help the effort. A three-judge panel determined that the tribe can seek damages for all the benefits it was denied from 1969 to 1996, reviving a lawsuit that had been dismissed by a lower court.

"[B]ut for the government's arbitrary and capricious treatment the Samish would have been extended federal recognition prior to 1996," Chief Judge Edward J. Damich wrote for the majority.

The battle isn't over just yet, however. The case was sent back to the U.S. Court of Federal Claims to determine whether laws cited by the tribe create a fiduciary responsibility that gives rise to money damages if the relationship is breached.

According to the tribe, the amount owed runs in the millions. Health care, education and self-determination funds have been wrongfully denied since 1969, the lawsuit contends.

In a separate case, the tribe says it is owed a share of fish runs in Washington. Due to the lack of federal recognition, the tribe has been excluded from the historic 1974 court decision that split the catch between Indian and non-Indian fishermen. In January 2005, the 9th Circuit Court of Appeals cleared the way for the tribe to reopen the judgment.

Both disputes stem from another court case that documented "excessive delays and governmental misconduct" by the BIA and its attorneys. The BIA relentlessly fought the Samish Nation's federal recognition at the same time it opposed the tribe's treaty rights.

In the recognition case, the BIA tried to claim the Samish people were never an historic tribe and were never recognized by the United States as a tribe until the 1970s. This would have prevented the tribe from claiming it is owed federal benefits, government lawyers argued.

The Federal Circuit, however, noted that this stance was rejected by the judge in that case, known as Greene v. Babbitt. "These findings in combination confirm the contention, central to the Samish's claims at bar, that the government was arbitrary and capricious in refusing the Samish federal acknowledgment under the regulations before 1996," the court stated.

The court said the tribe could therefore try to prove it is owed money 38 treaties and statutes. The court also left open the possibility that the tribe, sometime in the future, could seek damages for benefits after 1996.

But the court did block from the tribe citing the Indian Self-Determination and Education Assistance Act and the Snyder Act. Congress never intended for tribes to sue "for contract support costs never incurred, on contracts never created," the judges wrote.

Court Decision:
Samish Indian Nation v. United States (August 19, 2005)

Relevant Links:
Samish Indian Nation - http://www.samishtribe.nsn.us