Chinook Indian Nation v. Burgum

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 17, 2025
• Docket: 24-3629
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 17 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CHINOOK INDIAN NATION, et al., No. 24-3629 D.C. No. Plaintiffs - Appellants, 3:17-cv-05668-MJP v. MEMORANDUM*

DOUG BURGUM, Secretary of the Interior, et al.,

Defendants - Appellees.

Appeal from the United States District Court for the Western District of Washington Marsha J. Pechman, District Judge, Presiding

Argued and Submitted June 3, 2025 Seattle, Washington

Before: RAWLINSON, BRESS, AND BUMATAY, Circuit Judges.

The Chinook Indian Nation (“CIN”) appeals the district court’s dismissal of

its suit for presenting a non-justiciable political question. CIN brought the present

suit for declaratory and injunctive relief against the Department of the Interior

seeking federal recognition as an Indian Tribe. Federal recognition is a prerequisite

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

1 to an Indian tribe establishing a “government-to-government relationship with the

United States,” and receiving a range of rights and benefits. 25 C.F.R. § 83.2(a).

Although “the action of the federal government in recognizing or failing to recognize

a tribe has traditionally been held to be a political one not subject to judicial review,”

Kahawaiolaa v. Norton, 386 F.3d 1271, 1276 (9th Cir. 2004) (quotation omitted),

CIN argues that Congress delegated recognition authority to the courts in an

uncodified congressional finding in the List Act of 1994. Pub. L. 103-454, § 103(3),

108 Stat. 4791. Because CIN’s argument is premised on a misinterpretation of the

List Act, we affirm the district court’s dismissal of this case.

The operative provision of the List Act requires the Secretary of the Interior

to “publish in the Federal Register a list of all Indian tribes which the Secretary

recognizes to be eligible for the special programs and services provided by the

United States to Indians because of their status as Indians.” 25 U.S.C. § 5131(a)

(emphasis added). On its face, the List Act only requires publication of a list of

tribes that have already been recognized. It leaves the antecedent issue of

recognition to the Secretary. See Agua Caliente Tribe of Cupeño Indians of Pala

Reservation v. Sweeney, 932 F.3d 1207, 1217 (9th Cir. 2019) (“Although somewhat

circular, by definition, a federally recognized tribe is one that is already on the list.”).

CIN does not rely on the operative provision of the List Act; rather, it focuses

on one of its congressional findings. The relevant finding states that “[t]he Congress

2 finds that— … Indian tribes presently may be recognized by Act of Congress; by

the administrative procedures set forth in part 83 of the Code of Federal Regulations

…; or by a decision of a United States court.” § 103(3) (emphasis added). CIN

argues that the final reference to “a decision of a United States court” delegates

recognition authority to the federal judiciary.

This interpretation is not persuasive. Federal recognition is channeled through

the Department of Interior’s Part 83 process. See Agua Caliente, 932 F.3d at 1214

(citing 25 C.F.R. § 83.1). It is highly unlikely that Congress significantly

restructured the federal recognition process by means of one clause, buried among

several congressional findings, that precedes an operative provision pertaining only

to accurate list keeping. See Nat’l Org. for Women, Inc. v. Scheidler, 510 U.S. 249,

260 (1994) (“We also think that the quoted statement of congressional findings is a

rather thin reed upon which to base a requirement … neither expressed nor … fairly

implied in the operative sections of the Act.”); see also Whitman v. Am. Trucking

Assns., Inc., 531 U.S. 457, 468 (2001). In a case such as this, much more explicit

language is necessary to prove that a statute allows litigants to circumvent an

administrative process. See Bennett v. Spear, 520 U.S. 154, 174 (1997); San Carlos

Apache Tribe v. United States, 417 F.3d 1091, 1096–97 (9th Cir. 2005). It is more

likely that § 103(3) references narrow ways in which tribes have been “recognized”

3 under other statutes for limited purposes. See, e.g., Jamul Action Comm. v.

Simermeyer, 974 F.3d 984, 993 (9th Cir. 2020).

Section 103(3) does not have the legal effect that CIN ascribes to it. Since

CIN’s arguments on appeal are premised on its contrary interpretation of that

provision, we need proceed no further.

AFFIRMED.