United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELL YUNITED STATES DISTRICT JUDGE
Cayuga Nation is a federally recognized Indian Nation. This
case deals with decisions by the Bureau of Indian Affairs
(“BIA”) and the Assistant Secretary for Indian
Affairs of the Department of the Interior that recognized one
faction within the Cayuga Nation-now referring to itself as
the “Cayuga Nation Council”-as the governing body
of the Cayuga Nation for the purposes of certain contractual
relationships between that Nation and the United States
federal government. These decisions were apparently the
product of an adversarial process between the Cayuga Nation
Council and Plaintiffs, a rival faction within the Cayuga
Nation who assert that they represent the Nation's
rightful government. Plaintiffs have filed this lawsuit
seeking to overturn the decisions.
before the Court is the  Motion of the Cayuga Nation
Council to Intervene. Putative Intervenor Cayuga Nation
Council (“Putative Intervenor”) seeks to
intervene in this case to defend the government's
decisions recognizing it, as opposed to Plaintiffs, as the
governing body of the Cayuga Nation. Current Defendants
(effectively, the federal government) do not oppose the
Putative Intervenor's Motion, but Plaintiffs do. Upon
consideration of the pleadings, the relevant legal
authorities, and the record as a whole, the Court finds that
the Putative Intervenor has standing and is entitled to
intervene in this case as a matter of right under Federal
Rule of Civil Procedure 24(a). Accordingly, the Court shall
GRANT its Motion to Intervene.
Cayuga Nation is a sovereign, federally recognized Indian
Nation. Compl., ¶ 1. Plaintiffs allege that the Cayuga
Nation has long been governed by a Council of Chiefs selected
and overseen by “Clan Mothers, ” who Plaintiffs
purport to represent in this litigation. Id.
¶¶ 1-2. Plaintiffs assert that “Cayuga Nation
leaders are selected pursuant to the Great Law of Peace,
which gives that responsibility of nomination and removal to
the women who serve as Clan Mothers, based on input from the
members of their clans.” Id. ¶ 31.
According to Plaintiffs, this is a “deliberative and
consensus-based” process for selecting leaders.
Id. ¶ 33. Plaintiffs allege that the United
States federal government had previously recognized this form
of governance for the Cayuga Nation, and rejected efforts
over the years by a faction known as the “Halftown
Group” to secure support for the use of a mail-in
survey to reconfigure the Cayuga Nation's government.
Id. ¶¶ 34-36.
in June 2016 Defendant Bruce W. Maytubby, the Eastern
Regional Director of the BIA, revealed to Plaintiffs that the
Halftown Group intended to conduct a mail-in survey in order
to create a new government for the Cayuga Nation, and that it
was Mr. Maytubby's view that the proposed survey
“would be a viable way of involving the Cayuga people
in a determination of the form and membership of their
government.” Id. ¶¶ 37, 40.
Plaintiffs contend that this determination was the result of
secret meetings between the BIA and the Halftown Group, which
Plaintiffs were excluded from. Id. ¶ 38.
Plaintiffs objected to the proposed survey, arguing that,
among other things, it violated Cayuga law. Id.
December 15, 2016, Defendant Maytubby issued a decision
“(1) recognizing the Halftown Group as the government
of the Cayuga Nation for purposes of entering into a contract
under the ISDEAA [Indian Self-Determination and Education
Assistance Act] and declining to recognize Plaintiffs for
such purposes; (2) awarding an ISDEAA contract grant to the
Halftown Group, on behalf of the Cayuga Nation; and (3)
declining to award an ISDEAA contract to [Plaintiffs] on
behalf of the Cayuga Nation” (the
“Decision”). Id. ¶ 54. Plaintiffs
characterize the Decision as a reversal of
“longstanding federal policy, ” and challenge it
on a number of substantive and procedural grounds.
Id. ¶¶ 55-81.
filed a notice of appeal with the Interior Board of Indian
Appeals (“IBIA”), requesting that the Decision be
vacated. Id. ¶¶ 82-83. The IBIA eventually
transferred the appeal to Defendant Michael Black, the
then-Acting Assistant Secretary for Indian Affairs, who
issued a decision denying Plaintiffs' appeal.
Id. ¶¶ 89, 95.
September 20, 2017, Plaintiffs filed this lawsuit, claiming
that the Decision, and the affirmance of the Decision,
violated the Administrative Procedure Act (“APA”)
and Plaintiffs' constitutional right to due process.
Id. ¶¶ 100-65. As relief, Plaintiffs seek
that both decisions be declared unlawful and vacated, that
the Court enjoin Defendants from relying on the vacated
decisions for any action by the Department of the Interior,
that the individuals involved in rendering these decisions be
enjoined from further adjudicating the questions in this
case, that this matter be remanded to the BIA “for
government to government consultation and, as appropriate,
decision by a neutral decision-maker on recognition and the
Plaintiffs' ISDEAA application, ” and that they be
granted costs and attorneys' fees. Id. at 26-27.
24(a) of the Federal Rules of Civil Procedure governs
intervention as a matter of right. That provision provides,
in relevant part, that “[o]n timely motion, the court
must permit anyone to intervene who . . . claims an interest
relating to the property or transaction that is the subject
of the action, and is so situated that disposing of the
action may as a practical matter impair or impede the
movant's ability to protect its interest, unless existing
parties adequately represent that interest.”
Fed.R.Civ.P. 24(a)(2). Consistent with this language, the
United States Court of Appeals for the District of Columbia
Circuit (the “D.C. Circuit”) has identified four
requirements for intervention as a matter of right:
(1) Timeliness: First, an application to
intervene in a pending action must be timely. Karsner v.
Lothian, 532 F.3d 876, 885 (D.C. Cir. 2008). Whether a
given application is timely is a context-specific inquiry,
and courts should take into account (a) the time elapsed
since the inception of the action, (b) the probability of
prejudice to those already party to the proceedings, (c) the
purpose for which intervention is sought, and (d) the need
for intervention as a means for preserving the putative
intervenor's rights. Id. at 886.
(2) Interest: Second, the putative intervenor must have a
“legally protected” interest in the action.
Id. at 885. The test operates in large part as a
“practical guide, ” with the aim of disposing of
disputes with as many concerned parties as may be compatible
with efficiency and due process. United States v.
Morten, 730 F.Supp.2d 11, 16 (D.D.C. 2010).
(3) Impairment of Interest: Third, the action must threaten
to impair the putative intervenor's proffered interest in
the action. Karsner, 532 F.3d at 885. The inquiry is
not a rigid one: consistent with the Rule's reference to
dispositions that may “as a practical matter”
impair the putative intervenor's interest, Fed.R.Civ.P.
24(a)(2), courts look to the “practical
consequences” of denying intervention, Fund for
Animals, Inc. v. Norton, 322 F.3d 728, 735 (D.C. Cir.
2003) (citing Natural Res. Def. Council v. Costle,
561 F.2d 904, 909 (D.C. Cir. 1977)).
(4) Adequacy of Representation: Fourth, and finally, no
existing party to the action may adequately represent the
putative intervenor's interests. Karsner, 532
F.3d at 885. Significantly, the putative intervenor's
burden here is de minimis, and extends only to
showing that there is a possibility that its interests may
not be adequately represented absent intervention. Fund
for Animals, 322 F.3d at 735.
addition to these four requirements, which emanate from the
text of Rule 24(a) itself, a putative intervenor must further
establish that it has standing under Article III of the
Constitution. Fund for Animals, 322 F.3d at 731-32.
Where a party seeks to intervene as a defendant in order to
uphold or defend an agency action, it must establish: (a)
that it would suffer a concrete injury-in-fact if the action
were to be set aside, (b) that the injury would be fairly
traceable to the setting aside of the agency action, and (c)
that the alleged injury would be prevented if the agency
action were to be upheld. See Am. Horse Prot. Ass'n,
Inc. v. Veneman, 200 F.R.D. 153, 156 (D.D.C. 2001);
see also Friends of Animals v. Kempthorne, 452
F.Supp.2d 64, 68 (D.D.C. 2006) (identifying requirements for
constitutional standing in an action involving an agency