The opinion of the court was delivered by: Reggie B. Walton United States District Judge
The current lawsuit is but one chapter in the ongoing saga between the plaintiff, the Seminole Nation of Oklahoma ("the Nation") *fn1 and the defendants, the Secretary of the United States Department of the Interior ("DOI" or "Department") and its officials. Currently, plaintiff seeks a declaration from this Court that the DOI has acted in violation of the Administrative Procedure Act, 5 U.S.C. § 701 et seq. (2000) ("APA") and the "Principal Chief" Act of October 22, 1970, ("Act of 1970"), Pub. L. 91-495, 84 Stat. 1091, by refusing to recognize the plaintiff's General Council for the purpose of conducting government-to-government relations, and in continuing to recognize Jerry Haney, who has intervened in this matter, as the Nation's Chief. Before the Court at this time is the Plaintiff's Motion for Summary Judgment ("Pl.'s Mot."), the Defendants' Cross-Motion for Summary Judgment ("Defs' Mot.") and the pleadings in opposition to plaintiff's motion filed by plaintiff-intervenor Jerry Haney. For the reasons set forth below, both the plaintiff's motion for summary judgment and the defendants' cross-motion for summary judgment will be granted in part and denied in part.
The material events that precipitated the most recent controversy between the parties are as follows: *fn2 On July 1, 2000, the Nation held a referendum election in which it sought to adopt nine amendments to its Constitution. Plaintiff's First Amended Complaint for Declaratory and Injunctive Relief ("Compl.") ¶ 7. Several of these proposed amendments were designed to exclude the Freedmen, who are Indians of partial African descent, from membership in the Nation. In a letter dated September 29, 2000, DOI Assistant Secretary Kevin Grover stated that he would not approve the nine amendments to the Seminole Constitution because they sought to exclude the Freedmen and had not been submitted to the DOI for approval. Compl. Exhibit ("Ex.") 4, Letter from Assistant Secretary-Indian Affairs to Chief Haney dated September 29, 2000; Administrative Record ("Admin. R.") Document ("Doc.") 9 at 20.
The Nation filed a lawsuit on October 3, 2000, "challenging the Department's authority to review and approve amendments to the Seminole Nation's Constitution" in this Court that was assigned to Judge Kollar-Kotelly. Pl.'s Mot., Statement of Facts not in Dispute ("Pl.'s Stmt.") ¶ 21. *fn3 However, while that action was pending the Nation held elections on July 14, 2001, that were conducted in compliance with the Constitutional amendments that had not been submitted to the DOI for approval and that the DOI therefore deemed to be disapproved. After a run-off election was held, Ken Chambers was elected Principal Chief and Mary Ann Emarthle was elected Assistant Chief of the Nation. Compl. ¶¶ 13, 15. *fn4 Although Freedmen members did cast ballots, their votes were not counted in this election. See Plaintiff's Response to Defendant's Statement of Material Facts Not in Dispute ("Pl.'s Resp.") ¶ 20.
On September 27, 2001, Judge Kollar-Kotelly issued her ruling on the parties' cross motions for summary judgment. Seminole Nation of Oklahoma v. Norton, No. 00-2384 (D.D.C. Sept. 27, 2001) (CKK) ("Seminole I"). Judge Kollar-Kotelly held that the DOI has authority, pursuant to Article XIII of the Seminole Constitution, to approve amendments to the Nation's Constitution before they could be adopted. Id. at 19. In addition, Judge Kollar-Kotelly held that "the DOI is independently authorized pursuant to the Act of 1970 to approve or disapprove amendments affecting the selection of the chief . . ." Id. Of the nine proposed amendments to the Nation's Constitution, the court held that the DOI properly disapproved the three amendments that sought to deny the Freedmen membership in the Nation, as the "DOI clearly express[ed] the basis for its objection to these amendments, pointing out that the Freedmen have been members of the Seminole Nation since 1866 and that their removal would violate both statute and treaty." Id. at 22. However, regarding the remaining six amendments, the court held that the DOI failed to express a "rational objection to the substance of these amendments," id., and therefore "did not act reasonably in rejecting the remaining proposed amendments to the Seminole Constitution on the sole grounds that the Seminole Nation failed to properly 'submit' those proposed amendments for DOI review." Id. at 32. Thus, the court remanded those six amendments back to the DOI for approval or rejection. Id. *fn5
On October 10, 2001, Michael R. Smith, the Acting Regional Director of the Eastern Oklahoma Region of the Bureau of Indian Affairs ("BIA"), sent a letter to the Nation stating that the BIA's "refusal to recognize the results of the 2001 tribal elections is not unreasonable 'inasmuch as the Court affirmed the Department's positions regarding the Freedmen and the General Council'"; that the BIA would not restore a "government-to-government relationship" with the Nation's General Council "until the Freedmen representatives are restored to the General Council"; and that the BIA would continue to recognize Jerry Haney as Principal Chief and James Factor as Assistant Chief and required that the "'General Council as it existed prior to August 10, 2000 be reinstated' with its first order of business 'to rescind General Council Resolution 2000-1051.'" Pl.'s Stmt. ¶ 25. *fn6 The Nation appealed the position advanced in this letter on October 23, 2001, pursuant to DOI regulations. Id. ¶ 26.
In response to the Nation's appeal, representatives of the Nation met with BIA employees of its Southern Plains Region for an "informal conference" on December 5, 2001. Id. ¶ 32. Thereafter, on December 27, 2001, the Southern Plains Region of the BIA issued its "Findings and Recommended Decision," which included a recommendation that the General Council recognize Jerry Haney as the Principal Chief. See Pl.'s Mot., Ex. 5, Findings and Recommended Decision of the Informal Conference of December 27, 2001 for the Seminole Nation of Oklahoma. The Nation appealed the December 27 findings, but on January 28, 2002, the Interior Board of Indian Appeals ("IBIA") issued an order staying the appeal proceedings. *fn7 Pl.'s Stmt. ¶ 32.
While the foregoing events were in progress, "[o]n October 8, 2001, Freedmen representatives were hand delivered notices for a General Council meeting to be held on October 13, 2001." Id. ¶ 34. A proposed resolution, which would have the effect of recognizing full participation of the Freedmen on the Council, was included with the notice. Id.; Admin. R. Doc. 11. The General Council subsequently passed Tribal Resolution 2001-72 on October 13, 2001, which recognized "the Freedmen as fully participating on the General Council." Id. ¶ 38. *fn8
Over the ensuing months, both the Nation and the Assistant Secretary of the BIA worked to resolve the issue regarding recognition of the General Council. Id. ¶ 53. On March 28, 2001, Assistant Secretary Neal A. McCaleb sent letters to Mr. Haney and Mr. Chambers, wherein he provided several proposals "to re-establish normal government-to-government relations with the Nation." Id. ¶¶ 55-58. The March 28, 2002 letter outlined several proposals that would facilitate resumption of government-to-government relations between the Nation and the DOI. Admin. R. Doc. 29. Item six of the Assistant Secretary's letter provided:
The Department will not recognize the successors to the currently recognized Principal Chief or the Assistant Chief unless those successors are elected in an election in which all members of the Nation, including all Freedmen, are permitted to vote. The Department is willing to assist the Nation with the expense of such an election if the election is held promptly following the acceptance of these provisions. Id.
Secretary McCaleb stated that his assistant, Aurene Martin, would meet with the Nation's representatives in Oklahoma City. Id. The Nation responded to Mr. McCaleb's letter on April 1, 2002, and submitted a document in which it stated that it accepted "all proposals in full and [stated it was] willing to negotiate procedures as outlined in Item #6 of the proposal." Id. ¶ 56. When no response to the Nation's letter was received, the Acting Chairman of the General Council sent a letter to Ms. Martin expressing concern over the fact that the BIA was continuing not to fund the Nation's programs. Id. ¶ 57. Finally, on April 15, 2002, Ms. Martin responded to the Acting Chairman's letter and she inquired about the forms used in the General Council election held in July 2001 that required one-quarter degree of Seminole Indian blood, as opposed to one-quarter degree of Indian blood, for candidates to run for the positions on the General Council for their individual Bands. Id. *fn9 Ms. Martin also stated that she needed to review the responses of the interested parties and would need more time to try to resolve these issues with plaintiff. Id. ¶ 58; Admin. R. Doc. 31.
After several additional exchanges of correspondence, on April 24, 2002, the Assistant Secretary sent a letter addressed to both Mr. Haney and Mr. Chambers stating:
We realize that there are a number of band representatives who were in office prior to the July 2001 elections and who were reelected. We will recognize those band members as validly elected holdover officials. We will also recognize as band representatives those individuals elected at new band elections which were open to all candidates of one quarter or more Indian blood and who were elected in accordance with their duly established band governing documents and practices. We will recognize a new constituted Seminole General Council consisting of band representatives elected prior to July 2001 and these newly elected band representatives. Id. ¶ 59; Admin. R. Doc. 40.
Plaintiff construes this letter as a final agency action by the defendant that amounted to recognition of the plaintiff's General Council. Pl.'s Stmt. ¶ 59. Defendants counter that the April 24, 2002 letter was not an indication that plaintiff's General Council, as constituted, was being recognized by the DOI, but was merely "a statement of the basis, the essential principles, on which the Department would recognize a newly constituted Seminole General Council." Defendants' Objections to Plaintiff's Statement of Material Facts Not in Dispute ("Defs.' Objections") ¶ 59. And, Mr. Chambers subsequently learned at a meeting held on May 24, 2002, that the Assistant Secretary's position was that new elections needed to be held for the General Council and for the positions of Principal Chief and Assistant Chief. Id. ¶ 65.
II. The Parties' Arguments
According to plaintiff, the criteria contained in the Assistant Secretary's September 29, 2000 letter were satisfied when the General Council passed its resolution recognizing full participation of the Freedmen on the General Council and "[t]his alone renders DOI's subsequent refusal to recognize the General Council unlawful." Pl.'s Mot. at 25. Plaintiff also claims that the "DOI withdrew recognition of the General Council because the Freedmen had been removed from the Council. [Therefore, plaintiff argues that] [o]nce the Freedmen were recognized for full participation on the Council by passage of Tribal law . . . [the] DOI can not refuse to recognize the Council." Id. Accordingly, the Nation opines that because it passed a tribal resolution to recognize the Freedmen, "[t]he September 29, 2000 final agency letter is void and the agency is acting outside the scope of its authority to enforce the de-recognition of the General Council based on that letter." Id. at 31.
Next, plaintiff argues that the Assistant Secretary has changed his position by not adhering to his recognition of the General Council as provided in his April 24, 2002 letter and has failed to provide a rational basis for not adhering to the September 2000 and April 2002 letters. Id. at 33. Plaintiff argues that the Secretary has acted arbitrarily and capriciously in refusing to recognize the General Council based upon the one-fourth Seminole blood requirement, especially since the Secretary has approved this requirement since at least 1981 and the Freedmen would not have participated in the other Band elections as provided in the Seminole Constitution. Id. at 31. *fn10
Finally, the Nation argues that the BIA has violated the Act of October 1970, by in effect appointing Mr. Haney as Principal Chief when his term ended pursuant to the Nation's laws, on September 1, 2001. Id. at 35. Plaintiff now seeks judgment as a matter of law on the grounds that the DOI has violated the APA by failing to comply with the terms set forth in its September 29, 2000, final agency action letter; that the Assistant Secretary's April 24, 2002, letter was a final agency action that is binding and mandates that the DOI recognize the Nation's General Council; and, finally, that the Assistant Secretary violated the Act of 1970 when he continued to recognize Jerry Haney as the Principal Chief of the Nation.
Defendants have filed a cross-motion for summary judgment in which they take exception to the claims that their actions are in violation of the APA or the Act of 1970. *fn11 Specifically, defendants first argue that the final agency decision, as embodied in the September 29, 2000 letter was proper, and is supported by Judge Kollar-Kotelly's ruling. Defs.' Mot. at 16. Second, defendants argue that the April 24, 2002 letter does not constitute final agency action and therefore review of it under the APA is not proper. Id. at 21. Finally, defendants argue that they are in full compliance with the Act of October 1970 by continuing to recognize Chief Haney because pursuant to the Nation's constitution, the Chief shall serve until his duly elected successor is installed. Defendants argue that this constitutional provision presupposes that there will be a lawful election and installation of a new Chief, and therefore, the last lawfully elected Chief, prior to the unlawful July 2001 election, was and remains Jerry Haney. *fn12 Id. at 22.
All the parties agree that this case is governed by the APA. Title 5 of the United States Code, § 706 provides in part:
To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall--
(1) compel agency action unlawfully withheld or unreasonably delayed; and
(2) hold unlawful and set aside agency action, findings, and conclusions found to be--
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . .
In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error. 5 U.S.C. § 706.
In reviewing the actions of the defendants, the first inquiry the Court must make is "whether the [Assistant Secretary] acted within the scope of his authority." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971) (citation omitted). This inquiry also involves a "determination of whether on the facts the [Assistant Secretary's] decision can reasonably be said to be within [the] range [of his authority]." Id. After determining whether or not the Assistant Secretary acted within the scope of his authority, the Court must then decide, pursuant to 5 U.S.C. § 706(2)(A), whether "the actual choice made was not 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'" Id. (quoting 5 U.S.C. § 706(2)(A)); MD Pharm., Inc. v. DEA, 133 F.3d 8, 16 (D.C. Cir. 1998) (same). In reaching its conclusion regarding this question, "the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Citizens to Preserve Overton Park , 401 U.S. at 416 (citation omitted). Finally, the Court must determine whether "the [Assistant Secretary's] action followed the necessary procedural requirements." Id. at 417. Although the Court must make a detailed inquiry into the facts and circumstances underlying the Assistant Secretary's actions, "the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency." Id. However, "[t]he agency must articulate a 'rational connection between the facts found and the choice made.'" Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285 (1974) (citation omitted). Therefore, as this Court's Circuit has clearly held, "where the agency has failed to provide ...