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MASHPEE WAMPANOAG TRIBAL COUNCIL, INC. v. NORTON

December 21, 2001

THE MASHPEE WAMPANOAG TRIBAL COUNCIL, INC., PLAINTIFF,
V.
GALE A. NORTON, SECRETARY, U.S. DEPARTMENT OF INTERIOR, ET AL., DEFENDANTS.



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

  MEMORANDUM

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).

Background

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 acknowledgment.

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. §§ 83.10(i)-(l), 83.11.

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).

Analysis

A. Unreasonable Delay

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 ...


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