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Mdewakanton Sioux Indians of Minnesota v. Zinke

United States District Court, District of Columbia

September 1, 2017

MDEWAKANTON SIOUX INDIANS OF MINNESOTA, et al., Plaintiffs,
v.
RYAN ZINKE, [1] Secretary, United States Department of the Interior, et al., Defendants. Re Document Nos. 10, 11

          MEMORANDUM OPINION CONSTRUING DEFENDANTS' MOTION TO DISMISS AS A MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; GRANTING FEDERAL DEFENDANTS' REQUEST FOR JUDICIAL NOTICE

          RUDOLPH CONTRERAS, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Plaintiffs seek to compel the Department of the Interior to consult with them as an Indian tribe. Defendants move to dismiss for, among other reasons, failure to exhaust administrative remedies and the statute of limitations. For the reasons discussed below, the Court converts Defendants' motion to a motion for summary judgment, and grants Defendants summary judgment because Plaintiffs have failed to exhaust their administrative remedies.

         II. BACKGROUND[2]

         Plaintiffs consist of three individuals and the Mdewakanton Sioux Indians of Minnesota (MSIM), a group that Plaintiffs assert is an American Indian tribe acknowledged by the federal government. Compl. at 1-2, ECF No. 1. Plaintiffs bring suit against the Secretary of the United States Department of the Interior and the United States. Plaintiffs' expansive complaint seeks relief under the Administrative Procedure Act (APA). Compl. ¶¶ 231-40. In addition to their APA claims, Plaintiffs seek declaratory and injunctive relief regarding the same claims. Compl. ¶¶ 241-59.

         Although Plaintiffs request relief in several areas, they center on the claim that, although Defendants are required to consult with all tribes, Defendants have refused to consult with Plaintiffs.[3] See Compl. ¶ 236 (asserting that Defendants' “policies, practices, and customs” violate Plaintiffs' “rights and entitlements under federal law” because Defendants do not “consult[] directly with” Plaintiffs).

         First, the Court summarizes Plaintiffs' description of the MSIM's history as a tribe. According to Plaintiffs, the MSIM were acknowledged by an act of Congress on February 16, 1863 (Act of 1863). That statute referred to the MSIM in the context of annulling several treaties, including a treaty with the MSIM. Act of Feb. 16, 1863, 12 Stat. 652 (1863) (“Whereas the United States heretofore became bound by treaty stipulations to the . . . Medawakanton[4] . . . bands of the Dakota or Sioux Indians . . . . Be in enacted . . . [t]hat all treaties heretofore made and entered into by the . . . Medawakanton . . . bands of Sioux or Dakota Indians . . . with the United States, are hereby declared to be abrogated and annulled . . . .”).[5] Plaintiffs assert that, after being recognized by the federal government, the tribal status of the MSIM has never been terminated. Compl. ¶¶ 10-11. Plaintiffs define the current MSIM as “those American Indians and lineal descendants who remained or returned to Minnesota in or about 1863 whom Congress identified as a band of Indians as reflected in the Act of February 1863.” Compl. ¶ 12. The individual plaintiffs argue that they are members of MSIM, Compl. ¶¶ 17-22, and they attach a list of several thousand other individuals who “self-identify” as MSIM, Compl. ¶ 24; ECF No. 1-1, Ex. A.

         Plaintiffs do not dispute that the MSIM is not “recognized” by the Secretary of the Interior or included on the list of Indian tribes published by the Secretary pursuant to 25 U.S.C. § 5130(2) et seq. See, e.g., Compl. ¶¶ 246-50. However, Plaintiffs assert that they have been “acknowledged” by the Secretary in the past-although the Secretary currently refuses to acknowledge them-and this status is sufficient for the relief they seek. Compl. ¶¶ 243, 245, 257. Plaintiffs argue that, because they are an acknowledged tribe, Defendants are required to consult with them, Compl. ¶ 236, and the refusal to consult is equivalent to “termination of the MSIM without a termination statute in violation of the [APA].” Compl. ¶¶ 236-37, 251.

         Plaintiffs' description of the injuries Defendants have inflicted upon them is lengthy and wide-ranging. After wrestling with Plaintiffs' complaint, cf. infra Part III, the Court understands their claim to focus on Defendants' alleged refusal to consult with Plaintiffs concerning proposed constitutional amendments to the constitution of the Prairie Island Indian Community and changes to the land assignment system at Prairie Island. However, Plaintiffs also provide, apparently in way of context, references to various other events that they do not specifically tie to a cause of action.

         First, the Court summarizes Plaintiffs' allegations concerning consultation on the proposed changes at Prairie Island. See, e.g., Compl. ¶ 125 (arguing that Defendants are required to “consult[] directly with [MSIM] regarding all matters affecting the [MSIM] and its rights vis-à-vis [PIICSM] and the other communities”); see also Compl. ¶¶ 167-69 (“The MSIM in this lawsuit pursues two different land claims . . . . [first, ] for federal land assignments for MSIM at Prairie Island . . . .”).

         This claim requires a brief detour into the history of the lands and MSIM members at Prairie Island. The federal government purchased land at Prairie Island[6] in accordance with the 1888-1890 Appropriations Acts-and, according to Plaintiffs, this land was purchased on behalf of the MSIM. Compl. ¶¶ 14, 34; see also Pls.' Surreply Mem. (Pls.' Surreply), ECF No. 22 at 5. After the lands were purchased, the Secretary of the Interior assigned lands to some, but not all, MSIM members (because insufficient land was available) and thus only some of the MSIM members lived on the purchased lands. Compl. ¶¶ 35-37. Later, those MSIM members living on the purchased lands organized into the Prairie Island Indian Community in the State of Minnesota (PIICSM) in accordance with the Indian Reorganization Act of 1934. Compl. ¶¶ 39-40. PIICSM was organized in the non-tribal form of Indians residing on a reservation.[7] Compl. ¶ 44. According to Plaintiffs, those MSIM members who lived in the organized communities severed their tribal relations, but those without land assignments did not. Compl. ¶¶ 38, 40, 43. The entity at Prairie Island also organized into a corporation, the Prairie Island Indian Community (PIIC). Compl. ¶ 104. Plaintiffs assert that there is a difference between PIICSM, the federally recognized community, and PIIC, the corporation.[8] See Compl. ¶¶ 106-14. In 1980, a federal statute was passed which Plaintiffs assert “placed the parcels at Prairie Island in trust for the [PIIC]” but “preserved the property rights of the MSIM assignees.” Compl. ¶¶ 104-05; Act of Dec. 1980, Pub L. 9-557, 94 Stat. 3262. According to Plaintiffs, this beneficial interest was limited to PIIC, the corporation, rather than PIICSM. Compl. ¶ 106; ¶¶ 87-117. In 1996 the Prairie Island community requested that the corporate charter of PIIC be revoked, and Congress acceded. Compl. ¶¶ 109-11. Plaintiffs therefore argue that, because of that revocation, PIICSM (the federally-recognized entity) has no beneficial interest over the lands at Prairie Island, Compl. ¶ 114, and the beneficial interest has reverted to the MSIM, Compl. ¶ 115. In particular, Plaintiffs appear to believe that they are entitled to a particular parcel of the land at Prairie Island. See Compl. ¶ 115 (“6096 Whipple Way now belongs to the [MSIM] generally-and should be assigned to the Plaintiff representatives specifically.”).

         Against this backdrop, Plaintiffs argue that recent proposed changes to the PIICSM constitution will, among other injuries, injure their rights to the lands at Prairie Island. PIICSM, the federally-recognized entity, has a constitution. Compl. ¶ 44; see also Prairie Island Indian Community Constitution, ECF No. 1-1, Ex. E. According to Plaintiffs, the constitution includes references to the PIICSM as part of the larger group of the MSIM and provides for an annual MSIM conference. Compl. ¶¶ 45, 59, 61-62. Recently, the PIICSM has sought to amend its constitution through the Department's Secretarial election process. Plaintiffs object that the proposed amendments “eliminate all references to the MSIM and its rights, ” Compl. ¶ 123, and “appear to be a federal effort to ‘officially' terminate the [MSIM] without a Congressional Act, ” Compl. ¶ 142. See Compl. ¶ 129 (listing Plaintiffs' objections to the proposed revisions). Plaintiffs also appear to view the proposed constitutional amendments as related to their alleged loss of rights under the land assignment system. See Compl. ¶¶ 77-80 (complaining that Defendants did not consult Plaintiffs about the “termination of the federal land assignment system and the annual meetings” under the proposed constitutional amendments). For these reasons, Plaintiffs argue that the proposed amendments violate their rights.[9] Compl. ¶ 123.

         Finally, the Court reaches the kernel of Plaintiffs' complaint. Plaintiffs argue that they have requested that the Department consult with them concerning the proposed constitutional amendments and changes to the land assignment system, but that the Department has refused to do so in violation of the APA. See Compl. ¶ 80 (in relation to the proposed constitutional amendments for the Prairie Island Indian Community, Plaintiffs complain that “the Department of the Interior does not consult with the [MSIM] about the termination of their rights, including the termination of the federal land assignment system and the annual meetings for the [MSIM]”); see also Pls.' Mem. Opp'n Fed. Defs.' Mot. Dismiss (Pls.' Opp'n) at 31, ECF No. 13 (“MSIM representatives contacted the Department in 2016 requesting consultation regarding the PIIC constitutional amendments and the 30 acre land assignments at PIIC . . . .”).

         As previously mentioned, Plaintiffs' complaint refers to a variety of other topics, which the Court sketches briefly. Plaintiffs' argue that they have been deprived of some rights to a twelve square mile area of land dating from an 1863 Act.[10] See Compl. ¶¶ 167-69 (“The MSIM in this lawsuit pursues two different land claims[, second, ] . . . for the 12 square miles or legal equivalent set apart for the MSIM by the Secretary of the Interior in 1865 under section 9 of the February 16, 1863 Act.”). In addition, Plaintiffs' complaint contains a skeletal description of eight “additional subject areas as possible areas of legal dispute.”[11] Compl. ¶¶ 172-73. Plaintiffs do not state if they have ever sought or been denied consultation with Defendants concerning the twelve square mile area of land or any of their eight additional topics. As discussed in greater depth in Part III, the Court is unable to identify any claims beyond Plaintiffs' claim that Defendants refused to consult with them in 2016 concerning the proposed constitutional amendments and changes to the land assignment system at Prairie Island. Any other claim cannot be discerned by this Court and would be susceptible to dismissal for failure to state a claim.

         Defendants moved to dismiss Plaintiffs' claims for multiple reasons. See generally Fed. Defs.' Mot. Dismiss & Mem. Supp. (Defs.' MTD), ECF No. 10. Plaintiffs opposed the motion. See generally Pls.' Opp'n. In addition, Plaintiffs were granted leave to file and filed a surreply in response to Defendants' reply. See generally Pls.' Surreply Mem. (Pls.' Surreply), ECF No. 22; see also Minute Order of June 20, 2017. Defendants' motion is thus ripe for adjudication.[12]

         III. DISCUSSION

         To frame its analysis, the Court must determine the scope of Plaintiffs' claims. It is clear that Plaintiffs assert an APA claim based on Defendants' alleged refusal to consult. See Compl. ¶¶ 231-40 (“Count I: Violation of the Administrative Procedure Act”). It is also clear that Plaintiffs seek declaratory and injunctive relief relating to that claim. See Compl. ¶¶ 241-59 (“Count II: Declaratory Judgment” and “Count III: Injunction”).

         First, the Court attempts to identify the specific topics and occasions on which Plaintiffs allege that they were wrongfully denied consultation. Plaintiffs' complaint alludes to several topics on which Plaintiffs assert consultation was due. See Compl. ¶ 237 (“[The Defendants] have denied consultation to the Plaintiffs as Mdewakanton Sioux Indians of Minnesota regarding matters such as termination of the federal land assignment system for the Mdewakanton Sioux Indians of Minnesota at Prairie Island Indian Community, about the 12 square miles or legal equivalent they are entitled to because the Secretary of the Interior set apart 12 square miles for them ‘forever' under the February 1863 Act, and about termination of the MSIM without a termination statute in violation of the Administrative Procedure Act . . . .”). However, Plaintiffs do not provide any details about many of these topics, such as when they requested or were denied consultation. The Court can identify only one specific instance in which consultation was allegedly denied. That instance concerns the constitutional amendments and land assignment system at PIIC in 2016. See Pls.' Opp'n at 31 (“Once the MSIM representatives contacted the Department in 2016 requesting consultation regarding the PIIC constitutional amendments and the 30 acre land assignments at PIIC, the six year statute of limitations began.”). The Court is unable to discern any other specific occasions on which Plaintiffs assert they were denied consultation, including any requests for consultation concerning the 12 square mile set-aside or Plaintiffs' eight other topics of possible dispute. The Court therefore considers only Plaintiffs' claim that they were denied consultation that they requested in 2016 about the constitutional amendments and land assignment system at PIIC. However, the Court's conclusion infra that Plaintiffs have failed to exhaust their administrative remedies would equally bar any other claims concerning denial of consultation because Plaintiffs do not assert that they have ever exhausted their administrative remedies.

         In addition to their claim that they were denied consultation in 2016, portions of Plaintiffs' complaint leave open the possibility that Plaintiffs seek to assert-in this action-substantive claims under other statutes. See, e.g., Compl. at 60 (seeking that the Court “[d]eclare that the Defendants have violated the statutory rights of the Plaintiffs . . . by failing to make future land assignments under the 1863 Act, 1888-1890 Appropriation Acts and 1980 Act; and by failing to provide possession of the twelve square miles of land awarded under the 1863 Act or legal equivalent”); Compl. at 61 (seeking that the Court “[i]ssue an injunction . . . requiring the Defendants to begin future land assignments under the 1863 Act, 1888-1890 Appropriation Acts and 1980 Act; and requiring Defendants to provide possession of the 12 square miles of land awarded in 1865 under the February 1863 Act or a legal equivalent”); Compl. ¶ 87 (“The Department, after Congressional revocation of the Prairie Island Indian Community corporate charter in 1996, must make land assignments to the MSIM.”); Compl. ¶ 240 (arguing that because Defendants have violated “the 1863 Act, 1888-1890 Appropriation Acts, Indian Reorganization Act, 1980 Act and other statutes” their actions were “arbitrary, capricious, abuses of discretion, and not in accordance with the law” in APA terms); see also Compl. ¶ 173 (listing eight areas of possible legal dispute).

         Upon consideration of Plaintiffs' complaint in its entirety, the Court concludes that Plaintiffs currently seek to challenge only the Defendants' refusal to consult under the APA, and describe for context their belief that such consultation would lead the Department to take other substantive actions, without the intent to raise those claims until the current action resolves their tribal status and whether Defendants must consult with them. See Compl. at 2 (“MSIM sues the United States to acknowledge MSIM's existence and to enjoin the United States from continuing arbitrary decisions without informing the MSIM . . . .”); Compl. ¶ 155 (“[T]he Department's policies, practices and customs treating the MSIM as if it was not an acknowledged tribe is in legal error.”). This conclusion is buttressed by Plaintiffs' explanations of their claims in their opposition to Defendants' motion to dismiss. See, e.g., Pls.' Opp'n at 30, ECF No. 13 (“Defendant[s] commit[] legal error by not acknowledging the MSIM consistent with its administrative record. Once acknowledged, the MSIM may exercise rights under the 1934 IRA, the 1863 Act, the 1888-1890 Acts, and the 1980 Act.”); Pls.' Opp'n at 34-35 (“MSIM's right as an acknowledged tribe under the 1934 IRA to consultation with the Department is being unlawfully withheld. . . . [T]he Complaint alleges that once the MSIM is acknowledged by the Department, it will exercise its rights under unrepealed statutes with current legal effect-namely the 1934 IRA, February 1863 Act, 1888-1890 appropriation acts and the 1980 Act.”); Pls.' Opp'n at 36 (“Once the Department consults with the MSIM as an acknowledged tribe under the 1934 IRA, MSIM also complains of the Department's failure to provide them rights to the 1886 lands at the Prairie Island Indian Community . . .”); Pls.' Opp'n at 36 (“Once the Department consults with the MSIM as an acknowledged tribe under the 1934 IRA, MSIM also complains of the Department's failure to provide them rights to the 12 square miles of land.”).

         Indeed, in response to Defendants' argument that Plaintiffs failed to state a claim, Plaintiffs identify only a cause of action under the APA for failure to consult. See, e.g., Pls.' Opp'n at 33-34 (“The APA provides a cause of action for MSIM to sue the government [for] refusing to consult with the MSIM as an acknowledged tribe under the 1934 IRA with powers to exercise rights under unrepealed statutes with current legal effect-IRA, February 1863 Act, 1888-1890 Appropriation Acts, etc.-including land rights and reservation boundaries based on statutory restrictions.”); Pls.' Opp'n at 35-36 (“Now, the Plaintiffs complain of the Department of the Interior's ‘policies, practices, and customs' of withholding the right of consultation from the MSIM as an acknowledge [sic] tribe under the 1934 IRA. In this way, Plaintiffs challenge discrete agency action . . . .”). Throughout their opposition, Plaintiffs do not identify any statute other than the APA that provides a cause of action, or point to any alleged final agency action at issue other than the Department's various failures to consult. See generally Pls.' Opp'n at 33-37. The Court therefore concludes that Plaintiffs bring exclusively a claim under the APA for Defendants' failure to consult with them as a tribe, and, in particular, for failure to consult in 2016 regarding the proposed constitutional amendments and changes to the land assignment system at PIIC.[13] Therefore, the Court turns to Defendants' challenges in light of Plaintiffs' single claim.[14]

         A. ...


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