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Historic Eastern Pequots v. Salazar

United States District Court, District of Columbia

March 31, 2013

HISTORIC EASTERN PEQUOTS, Plaintiff,
v.
KENNETH SALAZAR, Secretary of the Interior, and LARRY ECHOHAWK, Assistant Secretary for Indian Affairs, United States DEPARTMENT OF THE INTERIOR, Defendants

Page 273

For HISTORIC EASTERN PEQUOTS, Plaintiff: James Benny Jones, LEAD ATTORNEY, Washington, DC.

For KENNETH LEE SALAZAR, Secretary of the Interior, LARRY ECHO HAWK, Assistant Secretary for Indian Affairs, Defendants: Barbara M.R. Marvin, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Environment and Natural Resources Division, Washington, DC.

For STATE OF CONNECTICUT, Amicus: Mark Francis Kohler, LEAD ATTORNEY, STATE OF CONNECTICUT OFFICE OF THE ATTORNEY GENERAL, Hartford, CT.

OPINION

Page 274

Emmet G. Sullivan, United States District Judge.

MEMORANDUM OPINION

Pending before the Court is a motion to dismiss or, in the alternative, to transfer, filed by defendants Kenneth Salazar, Secretary of the Interior, and Larry Echohawk, Assistant Secretary for Indian Affairs. [1] Upon consideration of the motion, the response and reply thereto, a brief filed by the State of Connecticut as Amicus Curiae, the entire record, and for the reasons stated below, defendants' motion to dismiss is GRANTED.

Page 275

I. BACKGROUND

In 1978, the Eastern Pequot Indians of Connecticut filed a letter of intent seeking federal acknowledgment as an Indian tribe pursuant to 25 C.F.R. Part 83. See 65 Fed. Reg. 17299 (Mar. 31, 2000). [2] On June 24, 2002, the Assistant Secretary issued a Final Determination (" FD" ) concluding that the " historical Eastern Pequot tribe, represented by two petitioners, the Eastern Pequot Indians of Connecticut and the Paucatuck Eastern Pequot Indians of Connecticut," satisfied the regulatory criteria for federal acknowledgment. See 67 Fed. Reg. 44,234-02 (Jul. 1, 2002). A request for reconsideration of that decision was filed with the Interior Board of Indian Appeals (" IBIA" ) within 90 days by the State of Connecticut and the towns of North Stonington, Ledyard and Preston. In re Fed. Acknowledgment of the Historical E. Pequot Tribe, 41 IBIA 1; 67 Fed. Reg. 44,240 (Jul. 1, 2002). On May 12, 2005, the IBIA issued an Order Vacating and Remanding the determination. 41 IBIA 1. On October 14, 2005, the IBIA issued and published a Reconsidered Final Decision (" RFD" ) in the Federal Register denying federal recognition to the tribe. 70 Fed. Reg. 60,099-01 (Oct. 14, 2005). The RFD stated that it was " final and effective upon the date of publication." Id.

On January 12, 2006, the IBIA received a request from the " Historic Eastern Pequot Tribe" for reconsideration of the RFD. 42 IBIA 133. The IBIA dismissed the request for lack of jurisdiction. Id. Specifically, the IBIA explained that it only has jurisdiction to review timely requests for reconsideration of a Final Determination, not a Reconsidered Final Determination. In this case, the Final Determination was issued on July 1, 2002. The Reconsidered Final Decision, issued October 14, 2005, was final and effective upon its publication.

Plaintiff filed the initial complaint in this action on January 13, 2012. ECF No. 1. At that time, plaintiff was proceeding as the " Eastern Pequot Tribal Nation." The Court subsequently received a letter dated January 20, 2012 from James A. Cunha, Jr., Tribal Chairman of the Eastern Pequot Tribal Nation. ECF No. 2. Mr. Cunha explained that the complaint had not been reviewed or authorized by the Eastern Pequot Tribal Nation and he requested information as to how to withdraw the complaint.

On February 3, 2013, the Court directed plaintiff to respond to Mr. Cunha's letter. On February 18, 2012, plaintiff moved to substitute the " Historic Eastern Pequots" for the Eastern Pequot Tribal Nation. ECF No. 3. The Court granted that motion on February 22, 2012, and directed plaintiff to file an amended complaint. The Amended Complaint was filed on March 7, 2012. ECF No. 5.

On April 11, 2012, defendants moved to dismiss or, in the alternative, to transfer venue. ECF No. 8. Defendants argue that the Court lacks subject matter jurisdiction over plaintiff's claims because they fall outside of the applicable statutes of limitations. Defendant also argues that Counts

Page 276

VIII and IX fail to state a claim. The motion is now ripe for the ...


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