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Tribe v. Jewell

United States District Court, D. Columbia.

March 31, 2015

MACKINAC TRIBE, PLAINTIFF,
v.
SALLY JEWELL, DEFENDANT

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[Copyrighted Material Omitted]

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For MACKINAC TRIBE, Plaintiff: Michael J Walleri, LEAD ATTORNEY, GAZEWOOD & WEINER, PC, Fairbanks, AK; Ryan Christopher Posey, POSEY LEBOWITZ PLLC, Washington, DC.

For SALLY JEWELL, U.S. Secretary of the Interior, Defendant: Matthew M. Marinelli, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Environment and Natural Resources Division, Washington, DC.

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MEMORANDUM OPINION

KETANJI BROWN JACKSON, United States District Judge.

Indian tribes generally operate within a different legal framework than other political entities within the United States. Under federal law, tribes are entitled to certain benefits, including access to federal funding for healthcare, education, and other social programs, 25 U.S.C. § 13, and are also subject to certain restrictions, including a limited right to sell tribal land, 25 U.S.C. § 177. Moreover, because a tribe retains some " inherent sovereign authority" independent of the United States and the state in which it is located, Okla. Tax Comm'n v. Citizen Band Potawatomi Tribe of Okla., 498 U.S. 505, 509, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991), Indian tribes enjoy a " government-to-government" relationship with the United States, Cal. Valley Miwok Tribe v. Jewell, 5 F.Supp.3d 86, 2013 WL 6524636, *97 (D.D.C. 2013). Significantly, however, before an Indian tribe can qualify for this special status, it must be " recognized" by the United States and must organize a tribal government. See Cal. Valley Miwok Tribe v. United States, 515 F.3d 1262, 1264, 380 U.S.App.D.C. 39 (D.C. Cir. 2008).

Plaintiff Mackinac Tribe aspires to attain the legal status of a recognized Indian tribe. Plaintiff maintains that, although it has not sought formal recognition and reorganization through the administrative process that the Department of Interior prescribes, the United States government recognized the Mackinac Tribe in an 1855 treaty, and thus the Mackinac Tribe is entitled to the benefits that recognized Indian tribes enjoy under federal law. Plaintiff has filed the instant lawsuit against Interior Secretary Sally Jewell, asking this Court for both a declaration that the Mackinac Tribe is a federally recognized Indian tribe for the purpose of the Indian Reorganization Act (" IRA" ), 25 U.S.C. § 476, and an order directing the Secretary to aid Plaintiff in organizing a tribal government pursuant to that statute.

Before this Court at present is Defendant's motion to dismiss Plaintiff's compliant on various grounds, including sovereign immunity and the failure to exhaust administrative remedies. Plaintiff responds that Congress has waived sovereign immunity for actions of this nature, and also that the Mackinac Tribe need not follow the agency's formal administrative recognition process, which, according to Plaintiff, is not the exclusive path to reorganization under the IRA. As explained fully below, this Court concludes that Congress has waived the immunity of the United States with respect to Plaintiff's claims; however, the Court also holds that Plaintiff must exhaust its administrative remedies by undergoing the administrative process for formal recognition before it may file a lawsuit seeking the benefits of the IRA. And because there is no genuine issue of material fact regarding the Mackinac Tribe's failure to exhaust its administrative

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remedies prior to bringing the instant action, the Secretary's Motion for Summary Judgment (as the Court has construed her Motion to Dismiss) will be GRANTED. A separate order consistent with this opinion will follow.

I. BACKGROUND

A. Federal Recognition And Its Statutory Benefits

Federal " recognition" of an Indian tribe is a term of art that conveys a tribe's legal status vis-à-vis the United States--it is not an anthropological determination of the authenticity of a Native American Indian group. See Mark D. Myers, Federal Recognition of Indian Tribes in the United States, 12 Stan. L. & Pol'y Rev. 271, 271 (2001) (" Presently, the recognition process is widely misunderstood . . . as conferring legitimacy. Recognition is a certification and documentation process, not a transformative one; it is analogous to a citizen's obtaining a passport, not an alien's naturalization." (internal quotation marks and citation omitted)). Federal recognition specifically denotes " the federal government's decision to establish a government-to-government relationship by recognizing a group of Indians as a dependent tribe under its guardianship[,]" id. at 272, and such recognition " is a prerequisite to the protection, services, and benefits from the Federal Government available to Indian tribes by virtue of their status as tribes," 25 C.F.R. § 83.2.

Notably, for hundreds of years, there was no uniform procedure for recognizing Indian tribes, and tribes were often recognized through treaties, legislation, and judicial decisions. See Felix Cohen, Handbook of Federal Indian Law § 3.02[4]--3.02[5] at 139--41. Consequently, tribal recognition law developed through centuries of disjointed theories, conflicting policies, and shifting attitudes of various branches of the United States government towards tribes. See William W. Quinn, Jr., Federal Acknowledgment of American Indian Tribes: Authority, Judicial Interposition, and 25 C.F.R. § 83, 17 Am. Indian L.Rev. 37, 39--44 (1992). This system created " anomalies . . . in which Indian tribes could be [recognized] for some purposes ( e.g., depredations or takings claims) but not for others ( e.g., the provision of services and benefits to tribes by the United States)." Id. at 43. Fortunately, " Congress, the administration, the national Indian organization, and many tribal groups" worked together to resolve this " longstanding and very difficult problem," and in 1978, the Department of the Interior promulgated uniform procedures by which Indian tribes may obtain recognition and thereby establish a government-to-government relationship with the United States. 43 Fed.Reg. 39,361 (Sept. 5, 1978); see also 25 C.F.R. pt. 83, Procedures for Establishing That an American Indian Group Exists as an Indian Tribe.[1] The procedures--called the " Part 83 Process" --allow any Indian group to apply for federal recognition by submitting a petition to the Department of the Interior with " detailed, specific evidence," 25 C.F.R. § 83.6, that proves the group is a " political and social community that is descended from a historic tribe," U.S. Gov't Accountability Office, GAO-02-49, Indian Issues: Improvements Needed in Tribal Recognition Process 1 (2001), and " comprises a distinct community at present," 25 C.F.R. § 83.7. See also Barbara N. Coen,

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Tribal Status Decision Making: A Federal Perspective on Acknowledgment, 37 New Eng. L.Rev. 491, 496--97 (2003) (" The underlying premise of this requirement--to demonstrate continuous tribal existence of the group--is that a tribe is a political, not a racial, classification." ).[2]

Once the Interior Department establishes that a tribe is a recognized political entity through the Part 83 Process, the tribe may seek to reorganize itself pursuant to the Indian Reorganization Act. See 25 U.S.C. § 476; see also 25 C.F.R. § 81, Tribal Reorganization Under a Federal Statute. In adopting the IRA's reorganization procedures, Congress " specifically intended to encourage Indian tribes to revitalize their self-government," Fisher v. Dist. Court, 424 U.S. 382, 387, 96 S.Ct. 943, 47 L.Ed.2d 106 (1976), thereby reversing prior policies of the federal government that had " destroyed Indian social and political institutions," Hearings on H.R. 7902 before the House Comm. on Indian Affairs, 78 Cong. Rec. 11,729 (1934). Thus, while tribal recognition is the establishment of a government-to-government relationship with the United States, reorganization is a separate process pursuant to which the United States government promotes the development of the governing structure of the newly recognized Indian tribe.

The IRA states that " [a]ny Indian tribe shall have the right to organize for its common welfare, and may adopt an appropriate constitution and bylaws, and any amendments thereto[.]" 25 U.S.C. § 476(a). The statute further provides that the constitution a tribe so adopts " shall become effective" if it is

(1) ratified by a majority vote of the adult members of the tribe or tribes at a special election authorized and called by the Secretary under such rules and regulations as the Secretary may prescribe; and
(2) approved by the Secretary [of the Interior Department] pursuant to subsection (d) of this section.

Id. Moreover, the IRA also specifically addresses the content of a tribal constitution, requiring the document to " vest in such tribe or tribal council" various " rights and powers[,]" including the right to " employ legal counsel; to prevent the sale, disposition, lease, or encumbrance of tribal lands . . . ; and to negotiate with the Federal, State, and local governments." 25 U.S.C. § 476(e).[3]

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Significantly for present purposes, in addition to authorizing a tribal constitution and setting forth other various rights, powers, privileges and immunities of Indian tribes, the IRA also speaks directly to the duty of the Secretary of the Interior Department to " call and hold an election" for ratification of the tribe's constitution. 25 U.S.C. § 476(c)(1); see also Thomas v. United States, 189 F.3d 662, 664 (7th Cir. 1999) (" Although these elections lay the very foundation for tribal self-governance, they must be called, held, and approved by the United States Secretary of the Interior." (citing 25 U.S.C. § 476)). The process begins with the tribe's submission to the Secretary of a request for an election to ratify its proposed constitution. See 25 U.S.C. § 476(c)(1)(A); 25 C.F.R. § 81.5(a). The Secretary's duty to hold the ratification election is nondiscretionary: once the Secretary receives such a request, the Secretary " shall" call an election within 180 days, 25 U.S.C. § 476(c)(1)(A), and in the meantime, the Secretary reviews the legality of the tribe's proposed constitution, id. § 476(c)(2)(B). The IRA provides that, if the tribe votes to adopt the proposed constitution, then the Secretary must approve the tribe's constitution within 45 days of the election " unless the Secretary finds that the proposed constitution . . . [is] contrary to applicable laws." Id. § 476(d)(1). Moreover, the statute clarifies that if the Secretary fails to act timely in response to the results of the ratification election-- i.e., " [i]f the Secretary does not approve or disapprove the constitution . . . within the forty-five days" --then " the Secretary's approval shall be considered as given." Id. § 476(d)(2). Furthermore and finally, the IRA states that " [a]ctions to enforce the provisions of this section may be brought in the appropriate Federal district court." Id.

B. The Instant Claims And Defenses

Plaintiff is the " modern historical successor" of the Mackinac Tribe, an Algonquin Indian people who lived in what is now the state of Michigan prior to European settlement of North America. (Compl. ¶ ¶ 1, 5, 15.)[4] In 2011, the Mackinac Tribe submitted to the Department of the Interior a request for the organization of a constitutional election pursuant to section 476(a) of the IRA. ( See id. ¶ 34.) According to Plaintiff's complaint, the Interior Department not only failed to call the requested election, it did not even respond to the Mackinac's request. ( See id. ¶ 35.)

Approximately three years later, on March 2, 2014, Plaintiff filed a two-count complaint in this Court seeking a declaration that the Mackinac Tribe is a federally recognized Indian tribe for IRA purposes and requesting an order directing the Interior Secretary to hold a constitutional election so that the Mackinac can organize a tribal government pursuant to the IRA. ( See Compl. ¶ ¶ 36-45.) Although the complaint does not state that the Mackinac have undertaken the formal Part 83 recognition process, Plaintiff maintains that the federal government recognized the Mackinac Tribe in a treaty between the United States and several different groups of Michigan Indians in 1855, and as such, the tribe asserts that it is entitled to the benefits

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of the IRA. ( See Pl.'s Opp. to Def.'s Mot. to Dismiss (" Pl.'s Opp." ), ECF No. 10, at 32-33.)[5]

Instead of answering Plaintiff's complaint, Defendant has moved to dismiss it. ( See Def.'s Mot. to Dismiss, ECF No. 7.) The primary thrust of Defendant's motion is the argument that this Court lacks subject matter jurisdiction over Plaintiff's claims because " Plaintiff has failed to set forth any waiver of the United States' sovereign immunity." (Def.'s Mem. of Points and Authorities in Supp. of its Mot. to Dismiss (" Def.'s Mem." ), ECF No. 7-1, at 21; see also Def.'s Reply Mem. in Supp. of its Mot. to Dismiss (" Def.'s Reply" ), ECF No. 12, at 21.) On this basis, Defendant maintains that Plaintiff's case should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1). ( See Def.'s Mem. at 22.) Defendant also contends that, even if the Court moves beyond the threshold issue of sovereign immunity, the Court should dismiss Plaintiff's case pursuant to Rule 12(b)(6) because Plaintiff failed to exhaust the established administrative process for federal recognition--namely, the Part 83 Process. ( See id. at 11 (citing Compl. ¶ ¶ 26, 29).) Moreover, according to Defendant, " Plaintiff's failure to exhaust the administrative acknowledgment process is also fatal to Plaintiff's claim that it is entitled to an election conducted by the Secretary of the Interior" because recognition through the Part 83 Process is a mandatory prerequisite to having the Secretary call a constitutional election under the IRA. (Def.'s Mem. at 35--36.)

With respect to the sovereign immunity issue, Plaintiff argues that subsection (d)(2) of the IRA specifically provides that actions to enforce provisions of the IRA may be brought in federal court, and insofar as Count II of the complaint seeks an order directing the Secretary to conduct an election pursuant to the IRA, Congress has clearly waived the United States' sovereign immunity with respect to this suit. ( See Pl.'s Opp. at 19--20.) Responding to Defendant's argument that Plaintiff must nevertheless first seek formal recognition through the Part 83 process, Plaintiff asserts that " there is no requirement that a tribe need go through a Part 83 recognition process prior to applying for reorganization under the IRA." ( Id. at 36.) Instead, Plaintiff contends that the Mackinac Tribe was previously recognized by the federal government in a treaty between the United States and various Michigan Indian groups ( see id. at 28--31), and thus, the Mackinac Tribe has already satisfied the IRA's recognition requirement, so there is no need for it to undertake the administrative process for recognition ( see id. at 31).

This Court held a hearing on Defendant's motion to dismiss Plaintiff's complaint on January 29, 2015.

II. ANALYSIS

As explained above, the Mackinac Tribe has filed suit against the Secretary of the Interior Department in her official capacity, asking this Court to (1) declare that it is a federally recognized Indian tribe for the purpose of the IRA, and (2) order the Secretary to conduct a constitutional election for the Mackinac Tribe as part of its reorganization effort, pursuant to 25 U.S.C. § 476(a). ( See Compl. ¶ ¶ 38, 41--43, 45.) The Interior Department insists that the Mackinac Tribe is not entitled to a constitutional election or any other reorganization benefits

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under the IRA because it has not been formally recognized through the agency's Part 83 Process ( see Def.'s Mem. at 10-12; Def.'s Reply at 6); moreover, as a threshold matter, the agency contends that this Court cannot even address the merits of Plaintiff's claims regarding its status and entitlements because Plaintiff's lawsuit is barred by sovereign immunity.[6] For the reasons explained below, this Court finds that the Administrative Procedure Act's waiver of sovereign immunity applies to permit Plaintiff's claims to proceed and thereby thwarts Defendant's motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1). However, because Plaintiff has conceded that it has not exhausted its administrative remedies prior to filing this lawsuit, this Court concludes that summary judgment must be granted in Defendant's favor and this suit must be dismissed.

A. Applicable Legal Standards

1. The Sovereign Immunity Doctrine

" It is an established principle of jurisprudence in all civilized nations that the sovereign cannot be sued in its own courts, or in any other, without its consent and permission." Beers v. State, 61 U.S. 527, 529, 15 L.Ed. 991 (1857). Consequently, the defense of sovereign immunity, if applicable, divests a federal court of jurisdiction over a plaintiff's suit against the sovereign. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 88--89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 449, 284 U.S.App.D.C. 333 (D.C. Cir. 1990); see also 14 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3655 (3d ed.) (" Although the United States district courts have general subject matter jurisdiction over actions brought by federal agencies or officers who are authorized to sue, there is no corresponding general statutory jurisdiction to entertain suits against federal agencies and officers." ). Notably, sovereign immunity is a privilege, not an imperative; therefore, Congress " may, if it thinks proper, waive this privilege, and permit [the United States] to be made a defendant in a suit by individuals, or by another State." Beers v. State, 61 U.S. at 529 (emphasis added). A waiver of sovereign immunity is thus effectively a grant of jurisdiction in cases in which the sovereign has been sued; the waiver gives courts the power to hear a claim against the United States. See United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983).

It is by now well established that " [a] waiver of sovereign immunity cannot be implied but must be unequivocally expressed"

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in statutory text. Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) (internal quotation marks and citation omitted). This means that " there can be no consent by implication or by use of ambiguous language." United States v. N.Y. Rayon Importing Co., 329 U.S. 654, 659, 67 S.Ct. 601, 91 L.Ed. 577, 108 Ct.Cl. 763 (1947). Nor can " [a] statute's legislative history [] supply a waiver that does not appear clearly in any statutory text." Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996). " An Act of Congress is not unambiguous, and thus does not waive immunity, if it will bear any 'plausible' alternative interpretation." Dep't of Army v. Fed. Labor Relations Auth., 56 F.3d 273, 277, 312 U.S.App.D.C. 309 (D.C. Cir. 1995) (citing United States v. Nordic Vill. Inc., 503 U.S. 30, 34, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992)); see also Webman v. Fed. Bureau of Prisons, 441 F.3d 1022, 1026, 370 U.S.App.D.C. 217 (D.C. Cir. 2006) (" Congress need not use magic words to waive sovereign immunity, but the language it chooses must be unequivocal and unambiguous." ). Thus, any ambiguity as to whether or not a certain statutory provision constitutes a waiver of sovereign immunity must be construed " in favor of immunity." United States v. Williams, 514 U.S. 527, 531, 115 S.Ct. 1611, 131 L.Ed.2d 608 (1995). Additionally, even when there is an explicit waiver of sovereign immunity, " the Government's consent to be sued must be construed strictly in favor of the sovereign, and not enlarged beyond what the language requires." Nordic Vill., 503 U.S. at 34 (citations and internal quotation marks and alterations omitted). Put another way, the government may have waived its sovereign immunity only under specified circumstances, and any " limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied." Lehman v. Nakshian, 453 U.S. 156, 161, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981).

A plaintiff who files an action against the United States must demonstrate that there has been a waiver of sovereign immunity that is applicable to the claims plaintiff has brought in order to satisfy the plaintiff's burden of establishing that the court has jurisdiction over the complaint. See Kelley v. Fed. Bureau of Investigation, No. CV 13-0825 (ABJ), 67 F.Supp.3d 240, 2014 WL 4523650, at *19 (D.D.C. Sept. 15, 2014). Accordingly, " a plaintiff must overcome the defense of sovereign immunity in order to establish the jurisdiction necessary to survive a Rule 12(b)(1) motion to dismiss." Jackson v. Bush, 448 F.Supp.2d 198, 200 (D.D.C. 2006) (citing Tri-State Hosp. Supply Corp. v. United States, 341 F.3d 571, 575, 358 U.S.App.D.C. 79 (D.C. Cir. 2003)).

" In ruling upon a motion to dismiss brought under Rule 12(b)(1), a court must construe the allegations in the complaint in the light most favorable to the plaintiff." Scolaro v. Dist. Of Columbia Bd. of Elections & Ethics, 104 F.Supp.2d 18, 22 (D.D.C. 2000) (citation omitted). " But where necessary, the court may consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Herbert v. Nat'l Acad. of Sciences, 974 F.2d 192, 197, 297 U.S.App.D.C. 406 (D.C. Cir. 1992) (citations omitted). In this regard, the procedures applicable to a motion brought under 12(b)(1) differ from those that apply to a Rule 12(b)(6) motion to dismiss, pursuant to which the court " may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [the court] may take judicial notice." E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624, 326 U.S.App.D.C. 67 (D.C. Cir. 1997). Thus,

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" [P]laintiff's factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion" than in resolving a 12(b)(6) motion for failure to state a claim, because " subject-matter jurisdiction focuses on the court's power to hear the plaintiff's claim, [and] a Rule 12(b)(1) motion imposes on the court an affirmative obligation to ensure that it is acting within the scope of its judicial authority." Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13--14 (D.D.C. 2001) (citation omitted).

2. The Exhaustion Doctrine

Another " long-settled rule of judicial administration[,]" Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50, 58 S.Ct. 459, 82 L.Ed. 638 (1938), is the principle that a court that has been asked to compel an agency to act " will stay its hand until the plaintiff has exhausted whatever internal remedies the agency provides[.]" Glisson v. Forest Service, 55 F.3d 1325, 1326 (7th Cir. 1995); see also Reiter v. Cooper, 507 U.S. 258, 269, 113 S.Ct. 1213, 122 L.Ed.2d 604 (1993) (" Where relief is available from an administrative agency, the plaintiff is ordinarily required to pursue that avenue of redress before proceeding to the courts; and until that recourse is exhausted, suit is premature and must be dismissed." ).[7] Under this doctrine, a plaintiff's failure to pursue an administrative process that could remedy plaintiff's claims will preclude judicial review of agency action, so long as the purposes of administrative exhaustion support such bar. Wilbur v. C.I.A., 355 F.3d 675, 677, 359 U.S.App.D.C. 380 (D.C. Cir. 2004).

Exhaustion has three main purposes: " 'giving agencies the opportunity to correct their own errors, affording parties and courts the benefits of agencies' expertise, [and] compiling a record adequate for judicial review[.]'" Avocados Plus Inc. v. Veneman, 370 F.3d 1243, 1247, 361 U.S.App.D.C. 519 (D.C. Cir. 2004) ((quoting Marine Mammal Conservancy, Inc. v. Dep't of Agric., 134 F.3d 409, 328 U.S.App.D.C. 253 (D.C. Cir. 1998)); see also Benoit v. U.S. Dep't of Agric., 577 F.Supp.2d 12, 23 (D.D.C. 2008) (" Even when, as in this case, exhaustion is not a jurisdictional prerequisite to judicial review, exhaustion of administrative remedies is generally required so that the agency has an opportunity to exercise its discretion and expertise on the matter and to make a factual record to support its decision." (internal quotation marks, alterations, and citation omitted)). In other words, the prudential exhaustion requirement ensures that plaintiffs do not file lawsuits against the United States in federal court as a means of bypassing the regulatory framework that the Executive has adopted to resolve disputes in the first instance. See James v. U.S. Dep't of Health & Human Servs., 824 F.2d 1132, 1137, 263 U.S.App.D.C. 152 (D.C. Cir. 1987) (" [W]here Congress has delegated certain initial decisions to the Executive Branch, exhaustion of available administrative

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remedies is generally a prerequisite to obtaining judicial relief for an actual or threatened injury[.]" ); Shinnecock Indian Nation v. Kempthorne, No. 06-CV-5013 JFB ARL, 2008 WL 4455599, at *18 (E.D.N.Y. Sept. 30, 2008) (" [A]fter passage of the regulations, it is abundantly clear that the judiciary should not intervene before exhaustion of the administrative procedures has taken place." ).

a. Motions To Dismiss A Complaint On Exhaustion Grounds

" [T]he failure to exhaust administrative remedies is an affirmative defense that the defendant bears the burden of pleading and proving." Howard v. Gutierrez, 474 F.Supp.2d 41, 49 (D.D.C. 2007). However, in evaluating a Rule 12(b)(6) motion, the court " may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [the court] may take judicial notice." St. Francis Xavier Parochial Sch., 117 F.3d at 624. Therefore, " a defendant may raise an affirmative defense (such as exhaustion of administrative remedies) under Rule 12(b)(6) only 'when the facts that give rise to the defense are clear from the face of the complaint.'" Shane v. United States, No. CIV.A.07-577(RBW), 2008 WL 101739, at *6 (D.D.C. Jan. 9, 2008) (quoting Smith-- Haynie v. Dist. of Columbia, 155 F.3d 575, 578, 332 U.S.App.D.C. 182 (D.C. Cir. 1998)). This means, then, that a court can only dismiss a complaint under Rule 12(b)(6) on the grounds that a plaintiff has failed to exhaust its administrative remedies if the complaint itself states that the plaintiff has failed to exhaust its administrative remedies. See Jones v. Bock, 549 U.S. 199, 216, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007).

b. Conversion To A Motion For Summary Judgment

If the complaint does not contain an allegation that the plaintiff has failed to exhaust available administrative remedies, " the appropriate procedural mechanism for bringing a case to closure when there is no evidence in the record that the plaintiff exhausted the administrative remedies available to him is a motion for summary judgment under Federal Rule of Civil Procedure 56, not a motion to dismiss under Rule 12[.]" Shane, 2008 WL 101739, at *7. This is because reaching the exhaustion question for the purpose of resolving a Rule 12(b)(6) motion to dismiss would require the court " to refer to materials outside the pleadings[,]" which courts may do, but only if it " also convert[s] the motion to dismiss into one for summary judgment[.]" Kim v. United States, 632 F.3d 713, 719, 394 U.S.App.D.C. 149 (D.C. Cir. 2011).

" The decision to convert a motion to dismiss into a motion for summary judgment . . . is committed to the sound discretion of the trial court." Flynn v. Tiede-Zoeller, Inc., 412 F.Supp.2d 46, 50 (D.D.C. 2006) (citation omitted). And " [i]n exercising this discretion, the 'reviewing court must assure itself that summary judgment treatment would be fair to both parties.'" Bowe-Connor v. Shinseki, 845 F.Supp.2d 77, 85--86 (D.D.C. 2012) (quoting Tele-Commc'ns of Key West, Inc. v. United States, 757 F.2d 1330, 1334, 244 U.S.App.D.C. 335 (D.C. Cir. 1985)). One means of providing the necessary assurance would be to give the parties notice of the potential conversion and provide them with an opportunity to present evidence in support of their respective positions. See Taylor v. FDIC, 132 F.3d 753, 765, 328 U.S.App.D.C. 52 (D.C. Cir. 1997). " However, such notice need not be given where the court is satisfied that the parties are not taken by surprise or deprived of a reasonable opportunity to contest facts averred outside the pleadings and the issues involved are discrete and dispositive." Smith v. United States, 518 F.Supp.2d 139, 154 (D.D.C. 2007)

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(internal quotation marks and citation omitted). Thus, even if neither party has moved for summary judgment, where " both parties have cited documents or provided evidence outside the pleadings with respect to the issue of exhaustion," a court may fairly convert a motion to dismiss for lack of exhaustion to a motion for summary judgment under Rule 56. Cost v. Soc. Sec. Admin., 770 F.Supp.2d 45, 49 (D.D.C. 2011); see also, e.g., Munsell v. Dep't of Agric., 509 F.3d 572, 592, 379 U.S.App.D.C. 45 (D.C. Cir. 2007) (district court grant of 12(b)(6) motion to dismiss upheld as a grant of summary judgment because exhaustion was raised in the Government's motion to dismiss and then fully addressed by the parties).

c. Motions For Summary Judgment On Exhaustion Grounds

Once a court has converted a motion to dismiss into a motion for summary judgment, summary judgment is appropriate " if the movant shows that there is no genuine dispute as to any material fact and [thus] the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); accord Talavera v. Shah, 638 F.3d 303, 308, 395 U.S.App.D.C. 7 (D.C. Cir. 2011). " A fact is material if it 'might affect the outcome of the suit under the governing law,' and a dispute about a material fact is genuine 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Steele v. Schafer, 535 F.3d 689, 692, 383 U.S.App.D.C. 74 (D.C. Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). While the Court must view this evidence in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor, see, e.g., Grosdidier v. Broad. Bd. of Governors, Chairman, 709 F.3d 19, 23, 404 U.S.App.D.C. 189 (D.C. Cir. 2013), the non-moving party must show more than " [t]he mere existence of a scintilla of evidence in support of" his or her position--" there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson, 477 U.S. at 252. Moreover, the non-moving party " may not rest upon mere allegation or denials of his pleading but must present affirmative evidence showing a genuine issue for trial." Laningham v. U.S. Navy, 813 F.2d 1236, 1241, 259 U.S.App.D.C. 115 (D.C. Cir. 1987) (internal quotation marks and citation omitted).

B. The United States Has Waived Its Immunity To Plaintiff's Lawsuit

The applicable legal standards require this Court to determine at the outset whether the United States has waived the defense of sovereign immunity in this context, thereby consenting to suit, and if so, whether the Mackinac Tribe's claims fit within the scope of any such waiver. See United States v. White Mountain Apache Tribe, 537 U.S. 465, 472, 123 S.Ct. 1126, 155 L.Ed.2d 40 (2003). In this regard, the parties have trained their focus on the IRA ( see, e.g., Pl.'s Opp. at 19 (asserting that the required express waiver of sovereign immunity appears in that statute); Def.'s Reply at 21 (arguing that the IRA waives sovereign immunity only for federally recognized tribes), but this Court finds that the IRA does not itself contain language that amounts to a waiver of sovereign immunity. Instead, Plaintiff's claims fall within the scope of the express waiver of sovereign immunity in the Administrative Procedure Act.

1. The Indian Reorganization Act Does Not Contain An Express Waiver Of Sovereign Immunity

Plaintiff points to section 476(d)(2) of the IRA--which specifically states that " [a]ctions to enforce the provisions of this section may be brought in the appropriate Federal district court[,]" 25 U.S.C. § 476(d)(2)--and based on that statutory

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verbiage, argues that " [t]here is no serious question that Congress has waived sovereign immunity to allow tribes to bring suit to compel the Secretary to hold an election under the IRA." (Pl.'s Opp. at 20.) Plaintiff is correct that subsection (d)(2) of section 476 authorizes Indian tribes to bring lawsuits " to enforce the provisions" of the IRA in federal court; however, this language alone does not a sovereign immunity waiver make. Indeed, as this Court reads subsection (d)(2), Congress is speaking to the power of a federal court to consider cases of this nature (actions to enforce the provisions of the IRA), and does not mention who may properly be named as a defendant in any such suit, much less expressly permit such enforcement actions to proceed against the United States. Consequently, subsection (d)(2) is, at most, ambiguous as far as the defense of sovereign immunity is concerned, and that section therefore fails to qualify as the type of unequivocal and explicit waiver of sovereign immunity that Plaintiff needs in order to maintain this action. See Nordic Vill., 503 U.S. at 33 (" Waivers of the Government's sovereign immunity, to be effective, must be unequivocally expressed." (internal quotation marks and citation omitted)).

Significantly, courts have long held that the mere fact that Congress expressly permits a certain claim to be brought in federal court does not suffice to show that Congress has abrogated the defense of sovereign immunity to that claim. See Munaco v. United States, 522 F.3d 651, 653 n.3 (6th Cir. 2008) (" [J]urisdictional statutes . . . do not operate as waivers of sovereign immunity." (citation omitted)); see also, e.g., Swan v. Clinton, 100 F.3d 973, 981, 321 U.S.App.D.C. 359 (D.C. Cir. 1996) (holding that 28 U.S.C. § 1331, which states that " district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States[,]" does not constitute a waiver of sovereign immunity); Washington Legal Found. v. U.S. Sentencing Comm'n, 89 F.3d 897, 901, 319 U.S.App.D.C. 256 (D.C. Cir. 1996) (holding that 28 U.S.C. § 1361, which provides that " district courts shall have original jurisdiction . . . to compel an officer or employee of the United States . . . to perform a duty owed to the plaintiff[,]" does not constitute a waiver of sovereign immunity). Instead, courts considering whether a statutory grant of jurisdiction qualifies as a waiver of sovereign immunity must look for a clear and unequivocal statement that the United States--or its agencies or officers--can be sued as a defendant in the permissible action.

For example, the Administrative Procedure Act (" APA" ) specifically states that certain actions brought against the United States " shall not be dismissed nor relief therein be denied on the ground that it is against the United States" and that " the United States may be named as a defendant in any such action." 5 U.S.C. § 702; see Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S.Ct. 2199, 2204, 183 L.Ed.2d 211 (2012) (noting that this section of the APA is a waiver of sovereign immunity). Similarly, the Federal Tort Claims Act (" FTCA" ) proclaims that " [t]he United States shall be liable . . . in the same manner and to the same extent as a private individual under like circumstances[.]" 28 U.S.C. § 2674; see Dolan v. U.S. Postal Serv., 546 U.S. 481, 485, 126 S.Ct. 1252, 163 L.Ed.2d 1079 (2006) (noting this section of the FTCA supplies a waiver of sovereign immunity). The Tucker Act, too, expressly permits " any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or

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unliquidated damages in cases not sounding in tort." 28 U.S.C. § 1491(a)(1); see Mitchell, 463 U.S. at 215 (1983) (noting that this section of the Tucker Act provides a waiver of sovereign immunity).

By contrast, a statute that says nothing about whether the United States can be sued under its provisions and instead generally authorizes the filing in federal court of an action to enforce provisions of the statute merely connotes a grant of federal jurisdiction that does not rise to the level of an express sovereign immunity waiver. See, e.g., Al-Haramain Islamic Found., Inc. v. Obama, 705 F.3d 845, 850--55 (9th Cir. 2012) (finding no waiver of sovereign immunity under the civil liability provision of Foreign Intelligence Surveillance Act, where that provision expressly permitted suit against " any person who committed such violation" and the statutory definition of " person" did not include the United States); In re Al Fayed, 91 F.Supp.2d 137 (D.D.C. 2000) (similar). In Geronimo v. Obama, 725 F.Supp.2d 182 (D.D.C. 2010), the district court considered statutory language in the Native American Graves Protection and Repatriation Act (" NAGPRA" ) that is substantially similar to the provision Plaintiff relies on here, and rejected the plaintiff's contention that a NAGPRA provision authorizing " an action in district court to seek 'such orders as may be necessary to enforce the provisions of th[e] Act'" constituted a waiver of sovereign immunity, concluding instead that this language merely " provides for a private right of action[.]" Id. at 185; see also id. (" NAGPRA does not provide a waiver of sovereign immunity." ).

So it is here. Again, subsection (d)(2) of the IRA says only that " [a]ctions to enforce the provisions of this section may be brought in the appropriate Federal district court." 25 U.S.C. § 476(d)(2). Unlike the language that Congress used in the APA, the FTCA, or the Tucker Act, subsection (d)(2) does not state that the United States can be made a defendant in any such action; in fact, subsection (d)(2) makes no mention of the United States at all. And without such a clear statement abrogating the sovereign immunity of the United States, this Court cannot conclude that a waiver of sovereign immunity is " unequivocally expressed in the statutory text" of subsection (d)(2). Lane, 518 U.S. at 192; see also Brown v. Sec'y of Army, 78 F.3d 645, 650, 316 U.S.App.D.C. 284 (D.C. Cir. 1996) (" [W]e must presume that a Congress that intends to waive sovereign immunity is aware of the principles that will govern our reading of the waiver. Therefore, having said that we would take the legislature strictly at its word when it specifies whether and to what extent it waives sovereign immunity, we are bound to infer that it intended no more than it said." ).

2. The Administrative Procedure Act Waives Defendant's Sovereign Immunity And Applies To Plaintiff's Action

The absence of an express sovereign immunity waiver in subsection (d)(2) of the IRA means that the Mackinac Tribe " must look beyond the jurisdictional statute for a waiver of sovereign immunity with respect to [its] claim." United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980). Plaintiff has not done any such thing in its briefing and argument, but Defendant briefly suggests--and then quickly dismisses--the possibility that the APA might supply the necessary sovereign immunity waiver. ( See Def.'s Mem. at 22 n.5 (noting with respect to 5 U.S.C. § § 701--06 that " [t]he APA provides a limited waiver of the United States' sovereign immunity[,]" but asserting that Plaintiff " is precluded from

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relying on" this waiver due to its failure to exhaust administrative remedies). The APA expressly and unequivocally provides that, where a plaintiff alleges that " an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority," the case " shall not be dismissed nor relief therein be denied on the ground that it is against the United States[.]" 5 U.S.C. § 702.[8] And this Court has carefully considered whether the APA's unequivocal sovereign immunity waiver is available to the Mackinac Tribe with respect to the claims it seeks to advance in this instant action. For the reasons that follow, the Court has concluded that the APA's waiver applies to the Mackinac Tribe's action for at least two reasons.

First, because the APA's waiver of sovereign immunity is available to all who satisfy the applicable statutory criteria, even when a plaintiff has not brought its claim against the United States under, or pursuant to, the APA. See Z Street, Inc. v. Koskinen, 44 F.Supp.3d 48, 2014 WL 2195492, at *10 (D.D.C., 2014)(" [A] suit need not have been brought pursuant to the APA in order to receive the benefit of that statute's sovereign immunity waiver; indeed, the 'APA's waiver of sovereign immunity applies to any suit whether under the APA or not.'" (quoting Chamber of Commerce v. Reich, 74 F.3d 1322, 1328, 316 U.S.App.D.C. 61 (D.C. Cir. 1996)) (emphasis omitted)). By its own terms, the waiver applies (1) when a plaintiff claims that " an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority," and (2) when the plaintiff " seek[s] relief other than money damages." 5 U.S.C. § 702. Such is the case here, given that in the instant complaint, Plaintiff Mackinac Tribe alleges that the Secretary failed to fulfill her statutory duty to call a constitutional election for Plaintiff when requested, and the complaint requests a judgment ordering the Secretary to conduct that election. ( See Compl. ¶ ¶ 40--45.)

Second, although Defendant argues that Plaintiff needs to fulfill an additional requirement in order to be able to rely on the APA's sovereign immunity waiver--namely, that the agency action that Plaintiff seeks to challenge must be a " final" agency action ( see Def.'s Mem. at 22 n.5 (" The APA provides a limited waiver of the United States' sovereign immunity by providing 'a right to judicial review of all 'final agency action for which there is no other adequate remedy in a court.'" (quoting Bennett v. Spear, 520 U.S. 154, 175, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997),[9] the

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D.C. Circuit rejected this very argument in Trudeau v. Federal Trade Comm'n, 456 F.3d 178, 372 U.S.App.D.C. 335 (D.C. Cir. 2006). See id. at 187 (holding that APA § 702's waiver of sovereign immunity " applies regardless of whether [the challenged agency action] constitutes 'final agency action'" ).

To the extent that Plaintiff Mackinac Tribe is here seeking to proceed under the IRA, it is sufficient that its complaint alleges that the agency has failed to act where the law provides it must, and Plaintiff need not identify a final agency action in order to avail itself of APA's sovereign immunity waiver, despite Defendant's assertions to the contrary. The Court is mindful, however, that " other limitations on judicial review or the power or duty of the court to dismiss any action or deny any relief on any other appropriate legal or equitable ground" may nevertheless preclude this action. 5 U.S.C. § 702. The Court therefore must proceed to consider Defendant's alternative assertion that the complaint must be dismissed because Plaintiff has not exhausted its administrative remedies. ( See Def.'s Mem. at 30 (" Plaintiff's complaint should be dismissed because Plaintiff has not exhausted its administrative remedies by obtaining a final determination regarding its recognition." ).)

C. Plaintiff Needed To Exhaust Its Administrative Remedies Prior To Bringing This Lawsuit And Has Indisputably Failed To Do So

The administrative path to receiving the recognition and reorganization assistance that Plaintiff Mackinac Tribe asks this Court to order is clear: the Interior Department requires Indian groups to apply for these benefits pursuant to the Part 83 Process. See 25 C.F.R. pt. 83, Procedures for Establishing That an American Indian Group Exists as an Indian Tribe; see also 25 C.F.R. pt. 81, Tribal Reorganization Under a Federal Statute. Plaintiffs do not dispute that the Part 83 Process is the mechanism by which Secretary now recognizes tribes and consequently determines whether Indian groups are eligible for federal benefits such as reorganization, yet Plaintiff concedes that it has not pursued those regulatory procedures. ( See Hr'g Tr. at 49:8). Instead, Plaintiff appears to assert that it has exhausted its administrative remedies because the complaint specifies that the tribe approached the Secretary to request an election pursuant to the IRA and " the Secretary did nothing." ( See Pl.'s Opp. at 35 (noting that " [t]he Secretary didn't even make a formal decision that the tribe was ineligible to reorganize under the statute, nor informally respond to the tribe" ); but see Hr'g Tr. At 36:2--4 (noting that " when we asked the status of that petition, the department sent a letter saying that the group is inactive now primarily because the guy [who sent the letter] died" ).)

To the extent that Plaintiff maintains that its election request was sufficient exhaustion and that it need not have undertaken the Part 83 Process under the circumstances presented here ( i.e., because it believes that the tribe already has been federally recognized pursuant to a treaty or otherwise), no less an authority than the D.C. Circuit has strongly suggested otherwise. In James v. U.S. Dep't of Health & Human Servs., 824 F.2d 1132, 263 U.S.App.D.C. 152 (D.C. Cir.

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1987), a group of Gay Head Indians sued for a declaratory judgment that the Interior Department's failure to include the Gay Heads on its list of federally recognized Indian tribes was contrary to law, as well as an order directing the Secretary to place the Gay Heads on the list of recognized tribes. See id. at 1135. The Secretary moved to dismiss the complaint on the ground that the Gay Heads had not pursued the Part 83 Process and thus had failed to exhaust their administrative remedies for receiving the federal recognition the lawsuit requested. See id. Much like the Plaintiffs before this Court, the Gay Heads argued that " it would be redundant for them to exhaust administrative channels in an attempt to obtain federal recognition" because the Gay Heads had already been recognized in a report that a Presidential Commission had prepared in 1822. See id. at 1133, 1136--37. ( See also Pl.'s Opp. at 28--29.) The D.C. Circuit disagreed, affirming the district court's dismissal of the Gay Heads' complaint, because the Gay Heads had not exhausted their administrative remedies by pursuing the administrative recognition process. See id. at 1138. In so holding, the James Court explained that " requiring exhaustion of the Department of the Interior's procedures for tribal recognition, before permitting judicial involvement" serves the purposes of the exhaustion doctrine in that " requiring exhaustion allows the Department of the Interior the opportunity to apply its developed expertise in the area of tribal recognition[,]" and " the factual record developed at the administrative level would most assuredly aid in judicial review should the parties be unsuccessful in resolving the matter[]." Id; see also Avocados Plus, 370 F.3d at 1247 (noting that the exhaustion doctrine serves the functions of " affording parties and courts the benefits of agencies' expertise, [and] compiling a record adequate for judicial review." (internal quotation marks and citation omitted).

The Circuit's reasoning in James clearly applies to the circumstances presented in this case. Although Plaintiff Mackinac Tribe may have approached the Secretary to ask for an election pursuant to the IRA, and thereby invoked the administrative process to some extent, it did not ask the agency the relevant question for the purpose of the administrative process-- i.e., whether the Mackinac Tribe satisfies the Part 83 requirements for federal recognition--which according to the agency, is a precursor to any request that the Secretary call an election for reorganization of the tribe.[10] This Court concludes that it is precisely because there is no genuine dispute that the Mackinac Tribe failed to seek an agency decision regarding recognition before it filed its lawsuit in federal court that summary judgment must be entered for Defendant. Indeed, the Interior Department's unique expertise in Indian affairs makes the agency better suited than the courts to determine whether or not Plaintiff should be federally recognized as an Indian tribe in the first instance, and the factual record that would be developed during the agency's review of plaintiff's claim would be useful to the court in reviewing of the agency's decision, see James, 824 F.2d at 1138. Therefore, " the policies underlying the exhaustion doctrine dictate" this result.

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United Tribe of Shawnee Indians v. United States, 253 F.3d 543, 550 (10th Cir. 2001); see also Sandy Lake Band, 2011 WL 2601840, at * 4 (noting that " requiring an entity seeking an IRA election to first request federal acknowledgment" ensures that the evidence the tribe offers in support of its claim " will be presented to the appropriate agency with the requisite expertise and established regulatory process." ).[11]

III. CONCLUSION

Although sovereign immunity poses no bar to the instant action, the Mackinac Tribe has admittedly failed to request recognition through the Department of Interior's Part 83 Process. Exhaustion of existing administrative remedies must be accomplished prior to filing a suit of this nature. See James, 824 F.2d at 1138. Consequently, as set forth in the accompanying order, Defendant's Motion for Summary Judgment (as this Court has now construed its Motion to Dismiss) will be GRANTED.

ORDER

This Court has considered Defendant Sally Jewell's motion to dismiss Plaintiff Mackinac Tribe's complaint, Plaintiff's opposition to that motion, and the entire record in this case. As explained in the accompanying Memorandum Opinion, the Court concludes that there is no genuine issue of material fact as to whether Plaintiff has failed to exhaust its administrative remedies for the claims raised in Plaintiff's complaint. Accordingly, it is hereby

ORDERED that Defendant's [7] Motion for Summary Judgment, as the Court has now construed Defendant's Motion to Dismiss, is GRANTED, and this case shall be DISMISSED.


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