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Tribe v. Jewell

United States District Court, D. Columbia.

March 31, 2015


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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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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.


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 ...

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