The Little Tribe That Could

As descendants of San Francisco’s aboriginal people, the Muwekma Ohlone Indian tribe seldom gets much respect. But that could be about to change.

Levanthal, the ethnohistorian, calls what happened to the Muwekma "a quintessential example of the politics of erasure." He adds, "A government bureaucrat arbitrarily and mistakenly declares that a people no longer exists, and now 80 years later their descendants still struggle to force the government to acknowledge the obvious."

That struggle has been nothing if not frustrating.

After several years of exhaustive genealogical research and filing thousands of pages of documentation with BIA in 1995, the tribe waited for more than a year for the agency to issue a letter merely confirming its "previous unambiguous recognition." The Muwekma were then placed on a waiting list of tribes seeking recognition. Based on the agency's resolving fewer than two such cases per year, it appeared likely that the Muwekma wouldn't get their turn until at least 2020. With the current generation of tribal elders growing older, Cambra says, "We didn't have that kind of time."

To expedite its case, the Muwekma sued the BIA, accusing the agency of unreasonable delay in considering its petition. In 2000, a federal judge ruled in the tribe's favor and gave the agency two years to act.

In 2001, as the deadline approached, BIA rejected the tribe's application, despite a few months earlier having granted recognition to two other tribes who weren't on the waiting list and whose circumstances closely matched those of the Muwekma. Astonishingly, one of those tribes was Koi Nation, whom the outgoing head of the BIA, Kevin Gover, granted recognition by executive order on his final day in office. As first reported by SF Weekly, Gover, who now teaches Indian law at Arizona State University, later went to work as a lobbyist on the Koi Nation's behalf during its failed push for the Oakland casino.

In 2003, the Muwekma sued again, this time asking a federal judge to order the agency to restore the tribe's recognition. Citing the constitution's equal protection clause, the tribe contends that BIA acted "arbitrarily and capriciously" in denying its request while granting recognition to Koi Nation and an Alaskan tribe.

Although BIA does not dispute that Muwekma's tribal status was never officially terminated, the agency nonetheless posits that the tribe has not always remained a cohesive entity after being dropped from the Federal Register. Yet, a similar finding in the case of the Koi and the other tribe did not prevent the agency from restoring them.

Walton, the judge hearing the matter, issued a memorandum last September taking the agency to task for the way the case was handled, saying that the BIA "[had] not articulated a sufficient basis" for its "disparate treatment of the Muwekma" compared to the other tribes.

The judge in effect gave the agency one last chance to review the voluminous administrative record of its dealings with the tribe and demonstrate how denial of the Muwekma's claim is justified. In February, the agency submitted additional materials. In March, the tribe's lawyers filed new briefs, arguing that BIA's rationale is no more convincing than before the judge questioned it.

BIA spokeswoman Nedra Darling says the agency will have no comment on the matter, pending the outcome of the case. Harry R. Sachse, the tribe's lead counsel, says he's "very optimistic." Sachse compares BIA's "intransigence" toward the Muwekma to school boards that resisted desegregation during the civil rights era. "Rather than do right by the tribe, it appears the Bureau of Indian Affairs prefers to have a court order them to do so."

If Sachse's name sounds familiar, it's because he's a former assistant U. S. Solicitor General in the Nixon and Ford administrations whose resume includes a stint teaching Indian law at Harvard. Lawyers like Sachse don't come cheap, and the Muwekma can't afford his legal tab on its own. But others can — others who are gambling that the Muwekma will become the first California Indian tribe to hit the jackpot and open a casino in an urban area.

Cambra isn't comfortable talking about gaming. "That's something that isn't on our minds right now. We're totally focused on the recognition issue."

But if she isn't talking, others are.

"Opening a casino is the end-all of the tribe's struggle," opines Cheryl Schmit, co-chair of Stand Up for California, an anti-gaming group. "It's the pot of gold at the end of the rainbow." This could especially be the case for the Muwekma, who, if recognized, would enjoy a distinct advantage over landless tribes from outside the Bay Area who want to open casinos here.

Federal law prevents tribes from setting up casinos on land they didn't already own in 1988 (the year the Indian Gaming Regulatory Act was enacted). But so-called "restored" tribes — including the Muwekma, if they succeed — which had no land when the law was passed, are exempt. Should the Muwekma, as a landless tribe, win recognition and establish a "reservation," they — unlike most other tribes — would not need the consent of California's governor to open a casino. (Gov. Arnold Schwarzenegger is on record opposing urban casinos.)

All of which helps to explain how a tiny group of Indians with ostensibly few resources could sustain a protracted legal battle against a federal agency that, by the tribe's acknowledgement, has cost it "several" millions of dollars. Its legal counsel, Sonosky, Chambers, Sachse, Endreson & Perry, with headquarters on K Street in Washington, is among the nation's pre-eminent firms specializing in Indian law.

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