United States District Court, D. Columbia
November 16, 2005.
JOHN WILLIAM PARKER, et al., Plaintiffs,
GALE A. NORTON, et al., Defendants.
The opinion of the court was delivered by: ELLEN HUVELLE, District Judge
In this action, three residents of the White Earth Indian
Reservation and enrollees of the White Earth Band of the
Minnesota Chippewa Tribe ("the Tribe"), challenge the Department
of Interior's decision of September 20, 1994, approving the
establishment of a tribal court over child custody proceedings by
a band of the Tribe. Defendants move pursuant to Fed.R.Civ.P.
12(c) for judgment on the pleadings on the grounds that the Court
lacks subject matter jurisdiction, plaintiffs lack standing, and
the claim is barred by the statute of limitations. Because it is
clear from the complaint that the claim is barred by the statute
of limitations, the motion will be granted solely on this
The complaint alleges the following. In 1980, a constituent
band of the Tribe petitioned to assume jurisdiction over child
custody matters under Section 108 of the Indian Child Welfare Act of 1978, 25 U.S.C. § 1918 et seq.*fn2 By memorandum
dated September 30, 1980, the Associate Solicitor-Indian Affairs
for the Department of the Interior advised the Assistant
Secretary that the Tribe's revised constitution did not authorize
bands to exercise child custody jurisdiction. This position was
reaffirmed in 1986 and 1990, but was reversed in 1994. By letter
dated September 20, 1994, the Assistant Secretary informed the
Tribe that upon review of the Solicitor's prior opinions, and
giving deference to the Tribe's interpretation of its
constitution, a constitutional amendment was not needed for bands
to establish tribal courts. Plaintiffs claim that this decision
is reviewable under the Administrative Procedure Act ("APA") as
arbitrary and capricious. Complaint ¶ 5.
"Every civil action commenced against the United States shall
be barred unless the complaint is filed within six years after
the right of action first accrues." 28 U.S.C. § 2401. This
includes APA actions. Impro Prods., Inc. v. Block,
722 F.2d 845, 850 (D.C. Cir. 1983), cert. denied, 469 U.S. 931,
105 S.Ct. 327, 83 L.Ed.2d 264 (1984); Citizens Alert Regarding the
Environment v. U.S.E.P.A. 259 F. Supp.2d 9, 25 (D.D.C. 2003).
Plaintiffs assert that the action is timely because the 1994
decision "is still be[ing] used to pass resolutions regarding the
courts and law enforcement."*fn3 Complaint ¶ 36. The APA, however,
authorizes judicial review only of "final agency action."
5 U.S.C. § 704. It does not provide a cause of action based on the
continuing effects of such action. Cf., e.g., Impro Prods., Inc.
v. Block, 722 F.2d at 850, n. 9 (the reissuance of a reprint did
not "start the statute of limitations anew [where there was] no
evidence suggesting that a conscious, independent decision was
made with any subsequent reissuance."). Plaintiffs' action filed
on May 27, 2005, nearly eleven years after the agency's decision,
clearly is time-barred.*fn4 A separate Order accompanies
this Memorandum Opinion.
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