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The Cayuga Nation v. Bernhardt

United States District Court, District of Columbia

March 12, 2019

THE CAYUGA NATION, et al., Plaintiff
v.
DAVID BERNHARDT, et al., [1] Defendants, THE CAYUGA NATION COUNCIL, Defendant-Intervenor.

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE

         The 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 (“DOI”) that recognized one faction within the Cayuga Nation, Defendant-Intervenor-now referring to itself as the “Cayuga Nation Council, ” though alternatively referred to in the administrative record as the “Halftown Group”-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 the product of an adversarial process between Defendant-Intervenor 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 BIA and DOI decisions.

         Now before the Court are Plaintiffs' [59] Motion for Summary Judgment, Defendants' [51] Cross-Motion for Summary Judgment, and Defendant-Intervenor's [50] Cross-Motion for Summary Judgment.[2] Upon consideration of the pleadings, [3] the relevant legal authorities, and the record as a whole, the Court DENIES Plaintiffs' Motion for Summary Judgment and GRANTS both Defendants' and Defendant-Intervenor's Cross-Motions for Summary Judgment. The Court concludes that Plaintiffs have failed to establish that Defendants violated the Administrative Procedure Act (“APA”) in making decisions recognizing Defendant-Intervenor as the governing body of the Cayuga Nation for purposes of certain contractual relationships between the Nation and the United States federal government. The Court further concludes that Plaintiffs failed to establish that Defendants violated Plaintiffs' due process rights in making these decisions.

         I. BACKGROUND

         Plaintiffs' action seeks vacatur of the BIA and the DOI decisions recognizing Defendant-Intervenor as the governing body of the Cayuga Nation for purposes of certain contractual relationships between the Nation and the federal government. Plaintiffs argue that these decisions violated the APA as well as the Due Process clause of the Constitution.

         The Cayuga Nation is one of the six nations of the Haudenosaunee Confederacy. It adheres to a traditional government that has historically relied on an oral, unwritten law referred to as the “Great Law of Peace.” AR-003878; AR-0038888. The governing body of the Cayuga Nation is the Cayuga Nation Council. In 2006, the Council was comprised of six members including Clint Halftown, Tim Twoguns, and Gary Wheeler. Mr. Halftown served as the Nation's “federal representative” in carrying out the Nation's relations with the United States federal government. AR-003217.

         Beginning in the early 2000s, the Council began having internal problems. In addition to these internal problems, Plaintiffs also allege that Cayuga citizens reported negative treatment by Mr. Halftown and his associates. See, e.g., AR-000100-09; AR-000301-48; AR-000147.

         These problems eventually led to a split in the Cayuga Nation Council. The “clan mothers” removed Mr. Halftown, Mr. Twoguns, and Mr. Wheeler from their positions on the Nation Council. AR-000163-70. Plaintiffs' group contends that these changes were valid as the clan mothers had absolute authority under Cayuga law to appoint and remove members of the Nation Council. AR-003217; AR-003572. Defendant-Intervenor's group disagrees that Cayuga law grants the clan mothers this sort of absolute authority and denies that the clan mothers validly removed Mr. Halftown, Mr. Twoguns, and Mr. Wheeler from the Nation Council.

         In a 2006 decision concerning the rightful make-up of the Nation Council, the BIA declined to recognize that Mr. Halftown had been removed from the Nation Council or that he was no longer the “federal representative” for the Nation. See generally George v. E. Regional Dir., Bureau of Indian Affairs, 49 IBIA 164 (2009) (affirming the BIA's decision).

         In 2011, the clan mothers again attempted to remove Mr. Halftown, Mr. Twoguns, and Mr. Wheeler from the Nation Council and to install new representatives. Following these changes to the composition of the Nation Council, the clan mothers and the new Nation Council notified the BIA of the changes to the Nation Council. AR-00100-09. Following briefing from both sides, in August 2011, the BIA recognized Plaintiffs' new Nation Council, rejecting the claims of Defendant-Intervenor. AR-002130-31. But, the Interior Board of Indian Appeals (“IBIA”) stayed and then vacated that decision without reaching the merits, explaining that the BIA should never have issued a decision on the leadership dispute. AR-002126-42; See generally Cayuga Nation v. E. Regional Dir., Bureau of Indian Affairs, 58 IBIA 171 (2014).

         In 2015, the Cayuga Nation's leadership dispute came to a head. The BIA received two requests to modify existing federal-tribal contracts under the Indian Self-Determination Act (“ISDEAA”). AR-003217. One request came from Plaintiffs' group; the BIA determined that the other request came from Mr. Halftown acting as the federal representative for the last Nation Council which had been formally recognized by the BIA in 2006. Id.

         In response to these competing requests, the BIA declined to address the merits of the Nation's leadership dispute. Instead, the BIA continued to recognize the last undisputed government of the Cayuga Nation which had been identified by the BIA in 2006. The BIA concluded that the 2006 Nation Council, with Mr. Halftown acting as federal representative, had the authority to draw funds from the Nation's ISDEAA contract. AR-003216-24. In recognizing the 2006 Nation Council for purposes of deciding the 2015 ISDEAA request, the BIA emphasized that “[t]his interim recognition decision is intended to provide additional time to the members of the Nation to resolve this dispute using tribal mechanisms and prevent the need for the BIA to examine Nation law and make a subsequent determination based on the results of that determination.” AR-003222.

         The BIA's reluctance to examine Nation law and to recognize one faction as the Nation's rightful leadership was in line with past BIA decisions. In 2005, the BIA had rejected an electoral process proposed by members of Defendant-Intervenor's group to determine the leadership of the Cayuga Nation. AR-000053-54. In 2012, the BIA again rejected a similar electoral process proposed by members of that group. AR-003411 n.3. And, the BIA rejected a 2014 request from members of Defendant-Intervenor's group asking the BIA to verify the results of a campaign of support. AR-003075; AR-003223.

         But, in its 2015 decision, the BIA cautioned that it could not forever refrain from recognizing a new Nation Council. The BIA explained that while “current circumstances [did] not warrant a decision on the merits of Nation law, ” the need to make such a decision “may … arise at a future time, conceivably when the time comes for the Nation to renew an [ISDEAA] contract.” AR-003222. The BIA stated that it would not enter a new ISDEAA contract absent a “consensus” Nation Council resolution. Id.

         However, there was little chance for a consensus resolution from the 2006 Nation Council given that the council had not met for a decade, excluding federally-supervised mediation meetings. Moreover, Plaintiffs' group claimed that it had formed a new, valid Nation Council without any members from Defendant-Intervenor's group. AR-003564, AR-003882; AR-003897. This lack of a consensus Nation Council risked federal grant money, funding from other United States agencies, the Nation's pending land trust application, and more. AR-003249.

         In response to this stand-still, in 2016, Defendant-Intervenor initiated a new “statement of support” (“SOS”), asking the Nation's members to “memorialize in writing, their understanding of Nation law and traditions regarding certain Nation governance matters.” AR-003878 (internal quotation marks omitted). The SOS's first proposition dealt with “the process by which the Nation is governed and its leaders are selected, ” and the second proposition dealt with “the identity of those individuals who are the authorized clan representatives on the Nation Council.” AR-003340-49.

         In preparation for their planned SOS, in the summer 2016, Defendant-Intervenor wrote to the BIA and requested “technical assistance” with the SOS. AR-003246-54. Three days later, the BIA sent a letter to Plaintiffs advising them of Defendant-Intervenor's proposal. AR-003262-63.

         Specifically, the letter stated:

The Bureau of Indian Affairs has been consulted by Mr. Halftown and his group regarding a way to identify the Cayuga Nation's leadership and confirm or reaffirm the Cayuga Nation's governing structure, and we have agreed that under the current circumstances a “Statement of Support” process would be a viable way of involving the Cayuga people in a determination of the form and membership of their tribal government. We want this process to be inclusive and to obtain a true sense of what the Cayuga people support. To that end, we hope that you will provide honest feedback to Mr. Halftown. If you have an alternative method for obtaining accurate information regarding the will of the Cayuga Nation's citizens, please be forthcoming with a proposal. Alternatively, if you prefer to communicate your concerns to my office, we will gladly share those concerns with the other parties involved.

AR-003262. The BIA requested a response from Plaintiffs within 10 days of the receipt of the letter. Id. Plaintiffs requested an extension of time to respond and were granted an extension.

         But, the BIA warned Plaintiffs that “it is important that your comments be provided as soon as possible because the campaign described in my letter and in the letter you received from the group led by Mr. Halftown is going to be getting underway.” AR-003266.

         In response, Plaintiffs presented to the BIA their objections to the SOS campaign. AR-003264-65; AR-003299-337; AR-003350-51. Plaintiffs also sent a letter to the Cayuga Nation citizens expressing their determination that the use of the SOS “is not the way of our people.” AR-003352. The letter asked the Nation's citizens to “reject this process of voting by mail, and support the Cayuga Nation's traditional system of consensus decision making by the chiefs and clan mothers.” Id. (capitalization omitted).

         During a two-month process, citizens of the Cayuga Nation received and responded to Defendant-Intervenor's SOS materials. AR-3567. The results of the SOS were confirmed by the BIA which found that “of 392 adult Cayuga citizens identified on the membership roll, 237 submitted statements of support for both of the two propositions.” AR-003880. Accordingly, over 60% of the Cayuga Nation indicated through the SOS that the Defendant-Intervenor comprised the lawful Nation Council.

         While the SOS campaign was proceeding, the BIA again received two competing proposals to enter a new ISDEAA contract on behalf of the Cayuga Nation. AR-003367-70; AR-003374-80. One proposal came from Plaintiffs' group, the other from Defendant-Intervenor's group. Facing competing contract requests with no overlap in Nation Council membership, the BIA's Regional Director, Bruce Maytubby, asked both sides to submit an opening and a response brief on (1) “the validity of the [SOS] as a matter of Cayuga law, ” (2) “[c]oncerns about how the [SOS] process had been conducted on the ground, ” and (3) “[t]he validity of the [Plaintiffs'] claim that it was vested with tribal government authority via traditional tribal processes.” AR-003881.

         Following the parties' briefing, Regional Director Maytubby determined that he could no longer take the interim approach of 2015 and recognize the 2006 Nation Council. In 2016, Mr. Halftown had submitted a contract proposal on behalf of a new Nation Council, not in his capacity as the 2006 Nation Council's federal representative. AR-03565. Accordingly, for many reasons, Regional Director Maytubby determined that “it [was] time to look at the processes the Cayuga Nation has undertaken to resolve this dispute.” Id. In addressing the merits of the leadership dispute, Regional Director Maytubby considered the arguments of both parties as well as Cayuga law to conclude that “the results of the [SOS] campaign should be respected.” AR-003572. Having recognized the validity of the SOS campaign, Regional Director Maytubby considered other objections from Plaintiffs including objections to the format and content of the SOS. AR-003570-76. “[B]ased on a complete review of all the information in the record regarding this dispute, ” Regional Director Maytubby “determined that the [SOS] campaign carried out during the summer of 2016 was a valid resolution of an intratribal dispute by a tribal mechanism.” AR-003563-64. Accordingly, Regional Director Maytubby recognized Defendant-Intervenor as the Nation's governing body for purposes of the ISDEAA contract. Id.

         Plaintiffs appealed the decision of Regional Director Maytubby, and Assistant Secretary of Indian Affairs, Michael Black, assumed jurisdiction over the appeal. AR-003666-67. Plaintiffs raised numerous objections to Regional Director Maytubby's decision in their appellate opening and response briefs. But, ultimately, Assistant Secretary Black rejected Plaintiffs' objections and affirmed the decision of Regional Director Maytubby. AR-003876-903.

         Following Assistant Secretary Black's denial of their appeal, Plaintiffs brought suit in this Court on September 20, 2017. On February 9, 2018, Plaintiffs moved for a Preliminary Injunction enjoining Defendants from enforcing or relying on the BIA's decision and the appellate affirmation of that decision. See generally Pls.' Mot. for Prelim. Injunc., ECF No. 22. On March 27, 2018, the Court denied Plaintiffs' Motion, finding that “Plaintiffs have not demonstrated that they are likely to succeed on their claims, most of which are based on speculation or can be distilled to mere disagreements with the decisions reached by the agency.” March 27, 2018 Mem. Opinion, ECF No. 42, 2. Prior to denying Plaintiffs' motion for a preliminary injunction, the Court had allowed the Halftown group or the Cayuga Nation Council to intervene in the case. See generally Feb. 23, 2018 Order, ECF No. 28. All parties have moved for summary judgment, and those motions are currently before the Court.

         II. LEGAL STANDARD

         Under Rule 56(a) of the Federal Rules of Civil Procedure, “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” However, “when a party seeks review of agency action under the APA [before a district court], the district judge sits as an appellate tribunal. The ‘entire case' on review is a question of law.” Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001). Accordingly, “the standard set forth in Rule 56[ ] does not apply because of the limited role of a court in reviewing the administrative record. . . . Summary judgment is [ ] the mechanism for deciding whether as a matter of law the agency action is supported by the administrative record and is otherwise consistent with the APA standard of review.” S.E. Conference v. Vilsack, 684 F.Supp.2d 135, 142 (D.D.C. 2010).

         The APA “sets forth the full extent of judicial authority to review executive agency action for procedural correctness.” Fed. Commc'n Comm'n v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009). It requires courts to “hold unlawful and set aside agency action, findings, and conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). “This is a ‘narrow' standard of review as courts defer to the agency's expertise.” Ctr. for Food Safety v. Salazar, 898 F.Supp.2d 130, 138 (D.D.C. 2012) (quoting Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). However, an agency is still required to “examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43 (internal quotation marks omitted). “Moreover, an agency cannot ‘fail[ ] to consider an important aspect of the problem' or ‘offer[ ] an explanation for its decision that runs counter to the evidence' before it.” Dist. Hosp. Partners, L.P. v. Burwell, 786 F.3d 46, 57 (D.C. Cir. 2015) (quoting Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43).

         III. DISCUSSION

         In their Complaint, Plaintiffs bring six claims for relief. In Count 1, Plaintiffs argue that Defendants violated the APA by acting contrary to law in determining that the SOS was a valid mechanism for selecting the membership of the Cayuga Nation Council. Compl., ECF No. 1, ¶¶ 100-12. In Count 2, Plaintiffs contend that Defendants violated the APA by failing to provide a reasoned explanation for departing from prior policy and approving the SOS as a lawful method of selecting members for the Cayuga Nation Council. Id. at ¶¶ 113-23. In Count 3, Plaintiffs allege that Defendants violated the APA by ignoring and minimizing evidence showing that the results of the SOS were unreliable. Id. at ¶¶ 124-29. In Counts 4 and 5, Plaintiffs claim that Defendants violated the APA as well as Constitutional due process by failing to provide Plaintiffs with a neutral decision maker. Id. at ¶¶ 130-50. Finally, in Count 6, Plaintiffs contend that Defendants violated due process by allowing Assistant Secretary Black to participate in both Regional Director Maytubby's December 2016 decision and the appeal of that decision. Id. at ¶¶ 151-65.

         Plaintiffs move for summary judgment as to all counts in their Complaint, except for Count 6. Defendants and Defendant-Intervenor move for summary judgment as to all counts, including Count 6. For the reasons given below, the Court concludes that Plaintiffs have failed to establish that Defendants violated the APA or due process in issuing Regional Director Maytubby's original decision or Assistant Secretary Black's appellate decision.

         A. Count 1- APA Violation Based on Determination that the SOS was a Valid Mechanism for Selecting Tribal Leadership

         First, Plaintiffs contend that Defendants violated federal and Cayuga Nation law by supporting and accepting the results of the SOS campaign. Plaintiffs have two primary arguments as to why Defendants' determination that the SOS was a valid mechanism for selecting Nation leadership was contrary to law. First, Plaintiffs argue that Assistant Secretary Black failed to review Regional Director Maytubby's legal conclusion de novo as was required by law. Second, Plaintiffs argue that Cayuga Nation law did not support the use of the SOS. The Court is not persuaded by either of Plaintiffs' arguments.

         As an initial matter, Plaintiffs contend that Assistant Secretary Black was required to use de novo review on questions of Cayuga Nation law when reviewing Regional Director Maytubby's decision. But, instead of using de novo review, Plaintiffs argue that Assistant Secretary Black impermissibly deferred to Regional Director Maytubby's analysis of Cayuga law.

         The Court concludes that Assistant Secretary Black was not required to use de novo review over Regional Director Maytubby's analysis of Cayuga Nation law. In support of their argument that de novo review was required, Plaintiffs cite to opinions setting forth the general proposition that the IBIA “reviews legal issues, and the sufficiency of the evidence to support a decision, de novo.” Picayune Rancheria of the Chukchansi Indians v. Pac. Regional Dir., Bureau of Indian Affairs, 62 IBIA 103, 114 (2016); see also Maniilaq Ass'n v. Burwell, 72 F.Supp.3d 227, 234 (D.D.C. 2014) (“Questions of law are reviewed de novo under the APA as in ordinary cases.”).

         But, these cases are not persuasive. First, this appeal was decided by the Assistant Secretary, not by the IBIA; and Plaintiffs present no evidence that the Assistant Secretary would be required to exercise the same standard of review as the IBIA. Second, while it is generally true that the IBIA reviews questions of law de novo, that is not the case with Indian law. Instead, “unless … tribal law clearly dictate[s] a particular outcome, [the IBIA] will afford BIA latitude to exercise discretion in determining with whom it will deal in carrying on the government-to-government relationship with the Tribe.” Picayune Rancheria, 62 IBIA at 114; see also LaRo cque v. Aberdeen Area Dir., Bureau of Indian Affairs, 29 IBIA 201, 204 (1996) (deferring to BIA's “reasonable interpretation” of tribal law).

         Perhaps recognizing that caselaw does not support their position, Plaintiffs also cite a comment in Assistant Director Black's appellate decision stating that “issues of law and challenges to the sufficiency of the evidence are reviewed de novo.” AR-003883. Plaintiffs argue that Assistant Secretary Black should be bound by this statement. But, here, Assistant Director Black is restating only the general standard of review. His statement was completely silent as to the standard of review for Indian law, and his statement in no way implies that the Assistant Secretary was binding himself to ignore precedent and to review Regional Director Maytubby's conclusions of Indian law de novo.

         But, even if Assistant Secretary Black was required to exercise de novo review, Plaintiffs have not shown that he failed to do so. Plaintiffs contend that Assistant Secretary Black merely reviewed Regional Director Maytubby's consideration of Cayuga Nation law and deemed it “reasonable.” AR-003888. But, in his opinion, Assistant Secretary Black specifically stated that he “receiv[ed] and consider[ed] briefing from both Councils that set out their views on Cayuga law.” AR-0038889. And, considering the parties' arguments on Cayuga law, Assistant Secretary Black determined that respecting the results of the SOS was “valid.” Id. The Court has no reason to doubt Assistant Secretary Black's statement that he considered the parties' arguments on Cayuga law. And, Plaintiffs cite nothing indicating that Assistant Secretary Black was required to do more than review the objections to Regional Director Maytubby's analysis, analyze those objections as they relate to Cayuga Nation law, and, in each instance, determine that Regional Director Maytubby's determinations were valid.

         In a final attempt, Plaintiffs argue that Assistant Secretary Black could not have properly considered Cayuga law in issuing his judgment because Defendants omitted certain evidence of Cayuga law from the February 2018 Administrative Record. Plaintiffs allege that the February 2018 Administrative Record did not contain certain documents on Cayuga law that Plaintiffs had provided to Regional Director Maytubby and to Assistant Secretary Black. Despite these omissions from the Administrative Record, in his Declaration, Assistant Director Black declared: “the Administrative Record that was filed in this case on February 21, 2018 was the entirety of the Administrative Record that was before me and which I consulted during my consideration of Mr. Jacobs' administrative appeal of the Decision.” Declaration of Michael S. Black, ECF No. 32-1, ¶ 7. ...


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