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June 30, 2000


The opinion of the court was delivered by: Urbina, District Judge.


Granting in Part the Plaintiff's Motion for Summary Judgment; Denying Defendants' Motion to Dismiss, or in the Alternative, for Summary.


This matter comes before the court upon the plaintiff's motion for summary judgment and the defendants' motion to dismiss, or in the alternative, for summary judgment. The plaintiff requests that the court issue a writ of mandamus or other remedy available under the Administrative Procedure Act ("APA"), compelling the Department of the Interior ("DOI") to complete within twelve months its review of the plaintiff's petition for acknowledgment as a federally recognized Indian tribe ("petition"). The defendants have filed a cross-motion to dismiss the complaint, or in the alternative, for summary judgment, based on lack of subject-matter jurisdiction. For the reasons which follow, the court denies the defendants' motion to dismiss and grants in part the plaintiff's motion for summary judgment.


The plaintiff Muwekma Tribe is a tribe of Indians indigenous to the present-day San Francisco Bay area. Compl. ¶ 2. Defendant Bruce Babbitt is the Secretary of the Interior and defendant Kevin Gover is the DOI's Assistant Secretary for Indian Affairs. As officers of the United States, both defendants have been named as parties to this suit in their official capacities. The plaintiff brings this action asserting that Bureau of Indian Affairs ("BIA") has unreasonably delayed addressing its petition for acknowledgment in violation of APA § 706(1).

The plaintiff is not currently on the list of federally recognized tribes published annually by the BIA. Compl. ¶ 2. Recognition by the United States "is a prerequisite to the protection, services, and benefits of the Federal government available to Indian tribes by virtue of their status as tribes." 25 C.F.R. § 83.2. In addition, obtaining federal recognition "mean[s] that the tribe is entitled to the immunities and privileges available to other federally acknowledged Indian tribes by virtue of their government-to-government relationship with the United States . . . ." Id. For these reasons, among others, the plaintiff seeks the status of a federally recognized Indian tribe.

The procedures by which Indian tribes not presently acknowledged can petition the Secretary of Interior for recognition are set forth at 25 C.F.R. § 83 et. seq. Compl. ¶ 10. These procedures require the tribe seeking recognition to file a detailed description of the tribe's history. See 25 C.F.R. § 83.7. If a petitioner can demonstrate previous federal recognition, it need only demonstrate continued tribal existence since the time of prior federal acknowledgment. See 25 C.F.R. § 83.3 (g).

On May 9, 1989, the plaintiff forwarded a letter of intent to file a petition for acknowledgment with BIA's Branch of Acknowledgment and Research ("BAR"). See Pl's Mem. in Supp. of Mot. for Summ. J. ("Mot. for Summ. J.") at 8. After retaining appropriate experts and conducting the requisite research, the plaintiff filed with BAR a petition for acknowledgment pursuant to 25 C.F.R. § 83 on January 24, 1995. Compl. ¶ 11. On April 6, 1995, after reviewing the plaintiff's submission, BAR forwarded a letter to the plaintiff further suggesting what was needed to convert their "preliminary effort into a fully documented petition." See Fleming Decl. dated Feb. 22, 2000, Ex. 6 at 1. Reasoning that the plaintiffs had not yet submitted a complete petition, BAR made clear that its letter should "not be considered as the formal technical assistance review of a documented petition which is required by the acknowledgment regulations (25 C.F.R. § 83.10 (b)(2))." Id. at 1. The BAR's April 6, 1995 letter also thanked the plaintiff for their "very informative" petition, and remarked that "your petition is well on its way to completion." Id.

The plaintiff responded to BAR's suggestions by submitting additional information on July 10, 1995 and August 15, 1995. See Mot. for Summ. J. at 8. The plaintiff then sought from BAR a ruling that the DOI had previously acknowledged the existence of the Muwekma Tribe. Id. By letter dated August 25, 1995, BAR promised to respond to this request by "the end of October." Fleming Decl., Ex. 9. BAR, however, did not respond until May 24, 1996, when it determined that the Muwekma Tribe had indeed been previously recognized as the Pleasanton or Verona Band.*fn1

On July 29, 1996, the plaintiff met with BAR staff, Congresswoman Zoe Lofgren and others to discuss the outstanding petition. Fleming Decl. ¶¶ 22-23. At this meeting, the plaintiff submitted additional information in support of its petition. See Mot. for Summ. J. at 9. On September 9, 1996, the plaintiff wrote Ada Deer, Assistant Secretary for the DOI, to relay that "much of the information" requested by BAR had been provided, yet the petition had not yet been "read or critically reviewed." Id. On October 4, 1996, the plaintiff again wrote to Ms. Deer, this time requesting a meeting to establish "clear and concise time tables and responses to Muwekma's petition." Fleming Decl., Ex. 15.

On October 10, 1996, BAR sent the plaintiff a formal "technical assistance letter," advising the plaintiff of deficiencies in its petition and requesting additional information. Compl. ¶ 11. By this time, approximately 385 days had passed since the plaintiff made its initial submission and 139 days had passed since previous recognition had been established. See Mot. for Summ. J. at 10. On March 26, 1997, in response to BAR's "technical assistance letter," the plaintiff submitted additional information. On June 10, 1997, the plaintiff requested a second technical assistance letter, which BAR issued on June 30, 1997. By this second technical assistance letter, BAR further advised the plaintiff of deficiencies in its petition and requested additional information. Compl. ¶ 11. The plaintiff submitted this second set of additional information on January 16, 1998. See Fleming Decl., Ex. 23.

On February 20, 1998, the plaintiff submitted a letter to BAR requesting that the petition be put on the "ready, waiting and active list." Fleming Decl., Ex. 24. On March 26, 1998, DOI notified the plaintiff that "[t]he Bureau of Indian Affairs (BIA) is placing the Muwekma petition on the ready for active consideration list on March 26, 1998. The petition will be evaluated in turn, after the petition of the Southern Sierra Miwok Nation." Fleming Decl. ¶ 36.

After requesting placement on the active consideration list, the plaintiff submitted additional documentation in support of its petition on June 2, 1998. In a June 19, 1999 letter to Congresswoman Lofgren, which discussed the status of the plaintiff's petition, defendant Gover relayed that ten tribes were ahead of the plaintiff on the "ready" list and fifteen tribes were under "active consideration." See Fleming Decl., Ex. 15. Defendant Gover also relayed that "it may take two to four years before the petition will be reviewed." Id. Based on these facts, the plaintiff asserts that defendants have unreasonably delayed review of their petition. For the reasons which follow, the court agrees with the plaintiff.


A. Motion to Dismiss

A party moving for dismissal under Federal Rule of Civil Procedure 12 (b)(6) has the burden of proving that the nonmovant has failed to state a claim upon which relief can be granted. To prevail, the movant must show "beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claim [that] would entitle him to relief." Conley v. Gibson. 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984) ("A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations."). For purposes of determining whether a complaint states a cause of action upon which relief can be granted, the averments in the complaint are taken as true, and the plaintiff is given the benefit of any doubts and of all reasonable inferences that can be drawn from the facts alleged. See Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C.Cir. 1994); Gregg v. Barrett, 771 F.2d 539, 547 (D.C.Cir. 1985). The court is not required, however, to accept inferences unsupported by the facts alleged, nor need it accept legal conclusions that are cast as factual allegations. See Kowal, 16 F.3d at 1276; United States v. BCCI Holdings, 980 F. Supp. 21, 26 (D.D.C. 1997). Bare conclusions of law and sweeping, unwarranted averments of fact need not be accepted. See Haynesworth v. Miller, 820 F.2d 1245, 1254 (D.C.Cir. 1987).

B. Jurisdiction Under the Administrative Procedure Act

The APA requires agencies to "proceed to conclude a matter presented to it . . . within a reasonable time." 5 U.S.C. § 555 (b). It also confers upon the courts authority to "compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706 (1). The defendants assert that a claim alleging "unlawfully withheld" agency action is appropriate only where Congress has established a duty to take action by a specific date. See Defs.' Mem. in Supp. of Mot. to Dismiss ("Mot. to Dismiss") at 17. The defendants further assert that the court may not compel action in this matter since agency action has not been "unreasonably delayed" within the meaning of the APA. Id. The plaintiff, on the other hand, urges this court to take action by assessing the agency delay and finding it unreasonable. In so doing, the plaintiff asserts, this court should issue a writ of mandamus or other order directing the defendant ...

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