raise its challenges to the Constitutional Government's authority
in a tribal forum. See id. Once again, Keel's letter did not
give any weight to the Tribal referendum denouncing the authority
of the Tribal Courts. See id. Yet both the Constitutional
government and the Three Chiefs Government, despite their
fundamental political disagreements, had endorsed a joint
resolution, TCR 97-A-1, in which they attempted to impress upon
the BIA the value of Tribal referendums. See Compl. ¶ 26. This
resolution, jointly prepared, asserted that "the governing bodies
reaffirm that public referendums have historically been the voice
of the people and their results are final and legally binding."
See Compl. ¶ 26; Pl.'s Mem. Supp. Summ. J., Ex. 22. This last
effort, like those before, failed to move the BIA. See Compl.
The final round of procedural wrangling between the Three
Chiefs Government and the BIA occurred in the wake of the Tribe's
June 7, 1997 elections. See Defs.' Mot. Summ. J. at 15-16. In
an apparent attempt to bring a temporary semblance of order to
tribal governance, members of the Three Chiefs Government ran for
and won a majority of the seats on the Constitutional Tribal
Council. See id. at 15; Pls.' June 23, 1999 Status Rep. at 3
("Pls.' Status Rep."). While the BIA views this action on
Plaintiffs' part as having mooted the Tribe's governance
disputes, see Defs.' Mot. Summ. J. at 15-16, Plaintiffs
adamantly disagree. See Pls.' Status Rep. at 3. Plaintiffs
assert that "[g]iven the BIA's refusal to recognize the form of
government and the governmental representatives chosen by the
Tribe, the Tribe has had to maintain a `Constitutional'
government, in addition to its Three Chief System government, in
order, inter alia, to have a conduit through which to receive
federal funds." Id.
As a result of the 1997 elections, the BIA requested that the
IBIA dismiss as moot the Three Chiefs' appeal of Defendant Keel's
May 2 determination, Smoke v. Eastern Area Director ("Smoke
III"). See Defs.' Mot. Summ. J. at 15. For a different reason
altogether, Plaintiffs agreed that the issue was moot, since
feuding Tribal factions had just agreed that its referenda
represented the traditional, and therefore decisive, voice of the
Tribe. Accordingly, the IBIA dismissed the case as moot. See
Smoke III, 31 IBIA 99 (July 31, 1997). The Three Chiefs
Government later moved to reinstate the appeal, but the IBIA
denied the request, noting that even if they reinstated the
appeal, "the Board would not have authority to grant the relief
requested by [the Three Chiefs Government]." Smoke III, 31 IBIA
121 (Sept. 4, 1997). While the IBIA understood the "dispute" at
issue in this appeal as one internal to the Tribe, and therefore
resolved by the final referendum, Plaintiffs maintained that the
real lingering dispute involved the relationship between the BIA
and the Tribe. See Pls.' Mem. Supp. Mot. Summ. J. at 5 ("Mr.
Keel's astonishing declaration gave rise to a new dispute — but
not an internal Tribal governance dispute, as the first dispute
had been. Rather, the new dispute was a dispute between the BIA
and the Tribe that Mr. Keel created and that Mr. Keel has
perpetuated to this day."(emphasis in original)). In their view,
the sole issue left unresolved after the series of referenda and
unsuccessful appeals to the BIA and the IBIA is whether and how
the Tribe may effectively selfgovern, while retaining recognition
by the federal government. Subsequent to this final denial of
their appeal, Plaintiffs filed this suit.
Both parties have filed Motions for Summary Judgment that are
now before the Court. Defendants also moved to amend their
answer. For the reasons expressed below, the Court grants
Plaintiffs' Motion for Summary Judgment, and denies both of
A. Defendants' Motion to amend their answer is untimely.
On the very day that the parties filed their final round of
briefs in this case, Defendants moved to amend their answer
pursuant to Federal Rule of Civil Procedure 15(a). The purpose of
this motion was to incorporate an affirmative defense of failure
to join a necessary or indispensable party. Pursuant to Rule
19(a), the Court must first ascertain if a person subject to
service of process is, in fact, a necessary or indispensable
party to the case. Rule 19(b) next requires the Court to
determine whether it may, in equity and good conscience, proceed
with a case if a necessary party cannot be joined. The timeliness
requirements of Rule 12(h) counsel that "[i]n federal procedure,
failure to join necessary parties is waived if objection is not
made in defendant's first responsive pleading; it is only the
absence of an indispensable party which may (possibly) be raised
later." Citibank, N.A. v. Oxford Properties & Finance Ltd.,
688 F.2d 1259, 1263, n. 4 (9th Cir. 1982);
Here, Defendants have not raised the issue of a necessary party
in a timely fashion. In fact, in their October 14, 1998 statement
to the Court pursuant to Local Rule 206, they explicitly
declared: "Defendants do not believe that other persons need to
be joined to this action." Defs.' Meet & Confer Stmt. at 3.
Having failed to raise the issue at an appropriate stage of this
litigation, Defendants may not now seek to have this case
dismissed for Plaintiffs' failure to join the Constitutional
Government in this action. See Citibank, 688 F.2d at 1262.
Timeliness notwithstanding, the Constitutional Government is
not an indispensable party to this litigation. For instance,
"[i]n cases where plaintiffs have challenged the propriety of
decision-making by federal administrative agencies, courts
frequently have concluded that states and municipalities affected
by that decision-making are not indispensable parties."
Coalition on Sensible Transportation Inc., v. Dole, 631 F. Supp. 1382,
1387 (D.D.C. 1986). In a case evaluating whether or not
non-party Indian tribes that are beneficiaries of a fund needed
to be joined in a case involving that fund, this Circuit wrote
that "[i]f the nonparties' interests are adequately represented
by a party, the suit will not impede or impair the nonparties'
interests, and therefore the nonparties will not be considered
`necessary.'" Ramah Navajo School Bd. v. Babbitt, 87 F.3d 1338,
1351 (D.C.Cir. 1996). While the Constitutional Government might
be affected by this Court's review of BIA's actions, their
joinder remains unnecessary for the Court to conduct its review.
See Coalition on Sensible Transportation, 631 F. Supp. at 1387.
Further, whatever interests the Constitutional Government might
have in this case will find adequate representation by
Defendants. See Ramah Navajo School Bd., 87 F.3d at 1351.
Finally, as Plaintiffs have argued in their Opposition to this
Motion, "the `Constitutional government' — which only exists
because of Defendant's [sic] admitted refusal to provide federal
funds to any other entity on the reservation and includes as its
leaders the Plaintiffs in this matter — have taken no interest in
this proceeding." Pl.'s Opp. Defs.' Mot. Amend Answer at 6.
B. The Mandamus and Venue Act is unnecessary to decide this
The Mandamus and Venue Act of 1962, Pub. Law 87-748, codified
in 28 U.S.C. § 1361 (the "Mandamus Act"), states that "[t]he
district courts shall have original jurisdiction of any action in
the nature of mandamus to compel an officer or employee of the
United States or any agency thereof to perform a duty owed to the
plaintiff." This Circuit has held that Congress enacted section
1361 in order to fill a void "which previously had been taken to
prevent District Courts outside the District of Columbia from
issuing mandamus against a government official." Peoples v. U.S.
Department of Agriculture, 427 F.2d 561, 565 (D.C.Cir. 1970).
Rather than create new jurisdiction, section 1361 simply extended
to other district courts the ability to entertain certain civil
actions under the Administrative Procedure Act. See id. "[The]
statute does not undercut the historic jurisdiction of the
District Court for the District of Columbia to entertain such
A particular case must meet specific criteria before a district
court may order mandamus under section 1361. See Whittle v.
Moschella, 756 F. Supp. 589, 596 (D.D.C. 1991). "To be entitled
to the extraordinary remedy of a writ of mandamus, a plaintiff
must have a clear right to relief, and there must be no adequate
alternative remedy." Id. (citing Allied Chem. Corp. v.
Daiflon, Inc., 449 U.S. 33, 34, 101 S.Ct. 188, 66 L.Ed.2d 193
(1980); Council of and for the Blind v. Regan, 709 F.2d 1521,
1533 (D.C.Cir. 1983) (en banc)). If the alternative remedy
existing for the plaintiff is either judicial or administrative,
courts generally will deny mandamus. See Association of Am. Med.
Colleges v. Califano, 569 F.2d 101, 111 (D.C.Cir. 1977) (citing
Haneke v. Secretary of HEW, 535 F.2d 1291, 1296 (D.C.Cir.
With or without the Mandamus Act, Plaintiffs are entitled to
bring this case in this Court. See Peoples, 427 F.2d at 565. An
adequate remedy is available to Plaintiffs through the
Administrative Procedure Act, and venue lies here because
defendant Department of the Interior is located in the District
of Columbia. Because the Court can afford Plaintiffs this remedy
without ordering mandamus, and because Plaintiffs need not invoke
the Mandamus Act in order to justify venue here, the Court
declines to decide this case under its section 1361
authority.*fn8 See Whittle, 756 F. Supp. at 596.
D. Defendants' actions with regard to the Tribe's governance
disputes have been arbitrary, capricious, and contrary to
The Administrative Procedure Act empowers this Court to "hold
unlawful and set aside agency action, findings, and conclusions
found to be . . . arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).
Although the judiciary bears the responsibility under the APA to
set aside agency decisions that meet this description, see MD
Pharmaceutical, Inc. v. Drug Enforcement Admin., 133 F.3d 8, 16
(D.C.Cir. 1998), "[t]he scope of review under the `arbitrary and
capricious standard' is narrow and a court is not to substitute
its judgment for that of the agency." Motor Vehicle Mfrs. Ass'n
v. State Farm Mut. Auto. Ins. Co.,