The opinion of the court was delivered by: Robertson, District Judge.
The Mashpee Wampanaog Tribal Council, whose petition for
recognition as a tribe was completed nearly six years ago,
complains of unreasonable delay by the Bureau of Indian Affairs
in issuing a decision. The parties have filed cross-motions for
summary judgment. For the reasons set forth below, an order
compelling agency action will be issued pursuant to
5 U.S.C. § 706(1).
The Mashpee are Indians who live on Cape Cod, Massachusetts.
Compl. ¶ 5. They aver, inter alia, that Captain John Smith
first encountered their ancestors while exploring the coast of
Cape Cod in 1614, id.; that, in 1870, the Commonwealth of
Massachusetts reorganized Mashpee tribal lands into the town of
Mashpee, which until the 1970s was controlled by the tribe,
id. ¶ 8; and that currently the tribe has approximately 1,500
members, three-quarters of whom reside in or around the town of
Mashpee. Pl.'s Mem. at 13. Defendants are the Secretary of the
Department of the Interior and the Assistant Secretary for
Indian Affairs, who heads the Bureau of Indian Affairs (BIA).
The Branch of Acknowledgment and Research (BAR) is the entity
within BIA responsible for processing petitions for
The Mashpee seek federal recognition as a tribe. Federal
recognition "is a prerequisite to the protection, services, and
benefits of the Federal government available to Indian tribes by
virtue of their status as tribes" and "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 as
well as the responsibilities, powers, limitations, and
obligations of such tribes." 25 C.F.R. § 83.2.
The authority to determine the eligibility of tribes for
federal recognition is assigned to BIA. 25 U.S.C. § 2, 9. BIA's
regulations establishing procedures for the recognition of
tribes were issued in 1978. 25 C.F.R.Pt. 83. An unrecognized
tribe first files a letter of intent. Id. ¶ 83.4. The tribe
then submits a petition for federal acknowledgment demonstrating
that it meets seven criteria. Id. § 83.6-83.7. BIA then
conducts a preliminary review of the petition in order to
provide the petitioner with "technical assistance" and "an
opportunity to supplement or revise the documented petition
prior to active consideration." Id. § 83.10(b). BIA advises
the petitioner of any "obvious deficiencies" in the petition and
allows the petitioner to withdraw the petition or submit
additional information. Id. After these steps are completed,
the petition is accepted as "ready for active consideration."
Id. at § 83.10(d). When BIA places a petition on the "ready
for active consideration" list, it notifies the petitioner and
assigns the petition priority on a first-come, first-served
basis. Id. A petition is eventually moved to "active"
consideration. Id. § 83.10(g). Within one year of notifying
the petitioner that active consideration has begun (unless BIA
determines that a 180-day extension is warranted), BIA must
publish a notice of its proposed finding in the Federal
Register. 25 C.F.R. § 83.10(h). There follows a comment period
and a procedure for requesting reconsideration. Id. §§
The Mashpee notified the Bureau of Indian Affairs of their
intent to petition for federal recognition in 1975, three years
before BIA adopted its regulations. Defs.' Mem. at 11. The tribe
filed its formal letter of intent in 1980,*fn1 Pl.'s Mem. at
13, and its petition for recognition in 1990, Defs.' Mem. at 11.
About one year later, in July 1991, BIA responded with a letter
of "obvious deficiency." Id. In January 1996, the tribe filed
its response to the "obvious deficiency" letter. Id. at 13. In
February 1996, BIA placed the tribe on the "ready for active
consideration" list. Id. More than five years have passed
since BIA placed the Mashpee's petition on the ready list, and
it is now number three on that list. Summary Status of
Acknowledgment Cases (November 16, 2001). Ahead of the Mashpee
are two other petitions on the "ready" list and thirteen more
under "active" consideration by BIA. Id.
According to BIA, "it is difficult or impossible to project a
date certain for the final determination of the Plaintiffs
acknowledgment petition." Defs.' Obj. to Pl.'s Stmt. of Mat.
Facts at 16. A recent report by the Government Accounting
Office, which analyzed problems with BIA's recognition process
at the request of Congress, estimates that it will take fifteen
years for all of the ready petitions to be resolved. U.S.
General Accounting Office (GAO), Improvements Needed in Tribal
Recognition Process at 10 (November 2001) (Pl.'s Ex. A to
Opp'n). BIA admits that it takes too long to process petitions.
To Provide for Administrative Procedures to Extend Federal
Recognition to Certain Indian Groups: Hearing on S. 611 Before
the Senate Committee on Indian Affairs, 106th Cong. 54 (2000)
(statement of Kevin Gover, Asst. Secretary for Indian Affairs)
(Pl.'s Ex. E).
The tribe alleges unreasonable delay by BIA in processing its
acknowledgment petition. 5 U.S.C. § 555(b) ("[W]ithin a
reasonable time, each agency shall proceed to conclude a matter
presented to it."); 5 U.S.C. § 706(1) ("The reviewing court
shall . . . compel agency action unlawfully withheld or
unreasonably delayed."). To address that delay, the Mashpee seek
a writ of mandamus or other order pursuant to § 706(1) that
compels BIA "to conclude their consideration of the Mashpee
Tribe's petition within twelve months of the date of the Court's
order." 28 U.S.C. § 1361; 28 U.S.C. § 1651(a). The tribe also
requests that I retain jurisdiction over the case until BIA has
rendered a decision.
"[C]onsideration of any and all mandamus actions starts from
the premise that issuance of the writ is an extraordinary
remedy, reserved only for the most transparent violations of a
clear duty to act." In re Bluewater Network & Ocean Advocates,
234 F.3d 1305, 1315 (D.C.Cir. 2000). In TRAC v. FCC, the D.C.
Circuit "discern[ed] the hexagonal contours of a standard" for
deciding when unreasonable agency delay is "so egregious as to
warrant mandamus" under § 706(1) of the APA. 750 F.2d 70, 79-80
(D.C.Cir. 1984); see also In re Bluewater, 234 F.3d at 1315.
The TRAC factors are: (1) the time agencies take to make
decisions must be governed by a "rule of reason"; (2) any
timetable or other indication of the speed with which Congress
expects the agency to proceed; (3) whether economic regulation
or human health and welfare is at stake; (4) the effect an
expediting order would have on agency activities of a higher or
competing priority; and (5) the nature and extent of the
interests prejudiced by delay. The sixth side of the TRAC
"hexagon" is actually a non-factor: The court need not find any
impropriety "lurking behind agency lassitude" in order to hold
that agency action is unreasonably delayed.*fn2 TRAC, 750
F.2d at 80.
B. Application of TRAC Factors
In a case virtually identical to this one, Judge Urbina
recently applied the TRAC factors and found unreasonable delay
in BIA's processing of a tribal petition. BIA had placed the
Muwekma tribe's petition on the "ready" list in March 1998 (more
than two years later than the Mashpee). Muwekma Tribe v.
Babbitt, 133 F. Supp.2d 30, 33 (D.C. 2000). The Muwekma sought
an order compelling BIA to complete its review of plaintiffs
petition within twelve months. Id. at 31. Finding that "this
court may address unreasonable delay by means less intrusive
than mandamus," Judge Urbina first ordered BIA to submit a
proposed schedule for resolving plaintiffs petition. Id. at
41. BIA then submitted, and Judge Urbina signed, a schedule with
no deadline for completion. 133 F. Supp.2d 42, 43 (D.C. 2001).
Judge Urbina later amended ...