queue simply moves all others back one space and produces no net
gain." In re Barr Labs., 930 F.2d at 75. "Of course, these
justifications become less persuasive as the delay progresses,
and must always be balanced against the potential for harm."
Cutler, 818 F.2d at 898.
This factor, of course, would normally weigh heavily in BIA's
favor. Not only must BIA "juggle competing duties under the
Acknowledgment Regulations and increasing collateral duties with
relatively limited resources," Defs.' Mem. at 29, but "the
injury claimed by Mashpee is applicable to all groups
[petitioning for acknowledgment]." Id. at 30.
I found and announced in open court on December 7, 2001, that
BIA's timetable (or lack of a timetable) for action on the
Mashpee petition is unreasonable. Were it not for Judge Urbina's
order in the Muwekma case and B IA's reaction to that order,
however, application of the TRAC factors would nevertheless
have dictated the denial of relief to the Mashpee in this case:
Congress knows about the situation but has not yet taken
definitive action to correct it, and BIA is plugging along with
its limited resources, business as usual, doing the best it
Judge Urbina's order moving the Muwekma to the head of the
line and BIA's apparent acquiescence in that order, however,
have altered the decisionmaking matrix. Tr. 12/7/01 at 52-53
(Defense counsel: "Muwekma was number 11. . . . Mashpee was
number three. . . . Muwekma went right to the top of the line.")
By failing to appeal from Judge Urbina's order, BIA essentially
conceded that the otherwise dispositive fourth TRAC factor —
the effect of expediting delayed action on agency activities of
a higher or competing priority — is of no weight at all. Since,
of the remaining factors, the first, third and fifth all favor
the Mashpee, an order compelling agency action will issue.
It is not the business of the judiciary to decide which tribe
should stand where in relation to others in BIA's queue of
petitioners, nor — except for deciding whether agency delay is
"so egregious as to warrant mandamus" — is it for the courts to
decide just how long it should take the BIA to act upon a
petition. What can and will be done, in this case as in the
Muwekma case, is simply to order BIA to decide the petition by
a date certain.
One might reasonably now expect many of the other tribal
petitioners to seek mandamus because of unreasonable delays in
their own cases. If they do, Judge Urbina's order may ultimately
succeed, not in breaking up the logjam at BIA, but only in
reorganizing it. A more hopeful scenario, however, is that BIA
will be moved by these two orders, or by an accumulation of
them, to reallocate its resources, or streamline its
decisionmaking process, or contract out some of the work that
needs to be done on a petition for acknowledgment, or seek
additional revenues from Congress for that task, or do any of
the many other things that agencies can do when they must.
Upon consideration of Plaintiffs Motion for Summary Judgment,
and Defendants' Opposition thereto, IT IS HEREBY ORDERED that
Plaintiffs Motion is GRANTED; and it is
FURTHER ORDERED that the Bureau of Indian Affairs Branch of
Acknowledgement and Research (BAR) place the Mashpee Petition
for Recognition on active consideration immediately, and
FURTHER ORDERED that BAR publish a proposed finding in the
Federal Register within six months of this order, and
FURTHER ORDERED that once the proposed finding is published, a
three month response and public comment period begins pursuant
to 25 C.F.R. § 83.10(i), and
FURTHER ORDERED that a final decision must be issued on the
petition within twelve months of the issuance of this Order.
This Court will retain jurisdiction until a final
determination on the petition is issued.