RUDOLPH CONTRERAS, United States District Judge.
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.
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
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.
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
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
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
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.
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.
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
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).
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.
Defendants argue that summary judgment
"[N]o one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted." Ass'n of Flight Attendants-CWA v. Chao, 493 F.3d 155, 158 (D.C. Cir. 2007) (quoting Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 82 S.Ct. 638 (1938)); see also Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004) (holding that "failure to exhaust precludes judicial review if `the
First, the Department provides an administrative process, as described in 25 C.F.R. § 2.8, for appealing inaction by the Department. See Defs.' MTD at 16-17, ECF No. 10; see also 25 C.F.R. § 2.8 (describing processes for appeal from the "inaction" of an official by a person "whose interests are adversely affected" by the inaction). Plaintiffs could have used this administrative process to appeal the Department's alleged failure to consult them in 2016. Plaintiffs, however, do not claim that they have ever attempted to appeal through the Department's administrative process. This Court agrees with the determination of many courts in other jurisdictions that a failure to exhaust the appeal process of 25 C.F.R. § 2.8 prevents Plaintiffs from pursuing an APA claim. See, e.g., Jech v. Dep't of Interior, 483 Fed.Appx. 555, 560 (10th Cir. 2012); Villegas v. United States, 963 F.Supp.2d 1145, 1157 (E.D. Wash. 2013); Miranda v. Salazar, No. 12-2216, 2013 WL 3367311, at *5-6 (C.D. Cal. July 3, 2013); Casanova v. Norton, No. 05-1273, 2006 WL 2683514, at *2 (D. Ariz. Sept. 18, 2006).
Second, Plaintiffs seek a right (consultation) that they claim is due because of their status as an Indian tribe. When other groups have sought relief that hinges upon their tribal status, the D.C. Circuit has required them to exhaust the Department's Part 83 process for tribal recognition before seeking a judicial determination of their tribal status. The Court finds that the same concerns require exhaustion of the Part 83 process here. The Part 83 process is the Department's formal avenue to recognize groups as Indian Tribes. See 25 C.F.R. Part 83; see also James v. U.S. Dep't of Health & Human Servs., 824 F.2d 1132, 1136 (D.C. Cir. 1987) (stating that Part 83 lays out the process "allow[ing] any Indian group that is not currently acknowledged by the Department of the Interior to apply for federal recognition"). If a group is unsatisfied with the result of the Part 83 process, they may seek review before an ALJ, 25 C.F.R. § 83.38, and subsequently by the Assistant Secretary, id. § 83.40. The decision of the Assistant Secretary is a final agency action for APA purposes, id. § 83.44, and therefore subject to judicial review. See Mackinac Tribe v. Jewell, 829 F.3d 754, 758 (D.C. Cir. 2016) ("[R]eview will be possible after the [plaintiffs] ha[ve] completed the Part 83 procedure."), cert. denied, ___ U.S. ___, 137 S.Ct. 638, 196 L.Ed.2d 521 (2017).
The D.C. Circuit has held that courts should require putative tribes to complete the Part 83 process before undertaking a judicial determination of their tribal status. See id. at 757 ("[W]hen a court is asked to decide whether a group claiming to be a currently recognized tribe is entitled to be treated as such, the court should for prudential reasons refrain from deciding that question until the Department has received and evaluated a petition under Part 83."); see also James, 824 F.2d at 1136 (holding that a Part 83 petition "is required as a prerequisite to acknowledgment"). This rule has been applied when the relief sought by the group asserting tribal status was the ability to conduct an election under the IRA, Mackinac, 829 F.3d 754, or inclusion on the Secretary's list of federally acknowledged tribes, James, 824 F.2d 1132. The Court sees no reason to depart from this rule in the current case where Plaintiffs seek the consultation-rights associated with tribal status.
Plaintiffs tacitly concede that they have not exhausted either their internal appeals or the Part 83 process. Instead, Plaintiffs advance three reasons to excuse their failure.
First, Plaintiffs argue that exhausting their administrative remedies would cause an excessive delay. Pls.' Opp'n at 38, ECF No. 13. However, they offer no support for their assertion that "any Department administrative procedure would likely stretch out for years." Pls.' Opp'n at 38. Plaintiffs do refer to the "many years" that the Defendants "spent ... taking positions in the U.S. Court of Federal Claims against
Second, Plaintiffs attempt to argue that the Department lacks the capacity to recognize them as a tribe. Pls.' Opp'n at 38-39. However, the Court cannot agree with Plaintiffs' suggestion that the Department lacks "institutional competence" to resolve questions of the status of Indian tribes. See Pls.' Opp'n at 38. The Department has indisputable expertise in determining whether tribes meet the criteria for federal recognition, particularly through the Part 83 process. See, e.g., James, 824 F.2d at 1138 (noting the Department's "expertise in the area of tribal recognition" including "two historians, two anthropologists, and two geneological [sic] researchers," which made it "apparent that the agency should be given the opportunity to apply its expertise prior to judicial involvement"); N.J. Sand Hill Band of Lenape & Cherokee Indians v. Corzine, No. 09-683, 2010 WL 2674565, at *9 (D.N.J. June 30, 2010) ("[W]eighty considerations of institutional competence counsel this Court to defer to the BIA's historical, genealogical, and anthropological expertise before any adjudication on the merits would otherwise be appropriate." (collecting citations)).
Finally, Plaintiffs argue that they need not exhaust their administrative remedies because the Department is biased against them, and any attempt to exhaust would therefore be futile. Pls.' Opp'n at 39-40. As examples of the Department's alleged bias, Plaintiffs cite the Department's involvement against the MSIM plaintiffs in Wolfchild. Pls.' Opp'n at 39-40. Plaintiffs also reiterate their substantive allegations from the complaint that the Department "with[e]ld the right of consultation" and "mal-distribut[ed] $673,944 of MSIM trust funds." Pls.' Opp'n at 39-40. However, these examples demonstrate at most that the Department is not presently treating Plaintiffs as a tribe. They do not demonstrate that the Department has pre-determined Plaintiffs' tribal status were that question actually placed before them — especially given that Plaintiffs' application pursuant to the Part 83 process would be supported by record evidence. Cf. Ass'n of Flight Attendants-CWA, 493 F.3d at 159 ("We will excuse exhaustion on grounds of futility `only when resort to administrative remedies is "clearly useless."'" (quoting Boivin v. U.S. Airways, Inc., 446 F.3d 148, 157 (D.C. Cir. 2006))). The case cited by Plaintiffs, Cherokee Nation of Okla. v. Babbitt, 117 F.3d 1489 (D.C. Cir. 1997), did not involve exhaustion at all, but rather whether the Department of the Interior could replace a tribe as a party for Rule 19 purposes. Because Plaintiffs have failed to show that their failure to exhaust administrative remedies should be waived, the Court will grant Defendants summary judgment based on Plaintiffs' failure to exhaust their administrative remedies for the Department's alleged refusal to consult in 2016.
Defendants have also asserted that Plaintiffs' claim falls beyond the applicable six-year statute of limitations set by 28 U.S.C. § 2401(a). Defs.' MTD at 11-13, ECF No. 10. The Court briefly addresses this argument because of the jurisdictional nature of the statute of limitations,
Here, the general six year standard of limitations for suits against the United States applies. Harris v. FAA, 353 F.3d 1006, 1009-10 (D.C. Cir. 2004) (citing 28 U.S.C. § 2401(a) and Sendra Corp. v. Magaw, 111 F.3d 162, 165 (D.C. Cir. 1997))). As discussed previously, the Court recognizes only a claim by Plaintiffs that Defendants failed to consult with them as a tribe. Given the facts alleged before this Court — namely, that Plaintiffs requested consultation in 2016 concerning the proposed amendments to the PIIC constitution and land assignment system, but were denied — Plaintiffs' claim that they were denied consultation in 2016 accrued no earlier than 2016, and is therefore well within the six-year period. 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.").
Defendants' suggestion that the statute of limitations closed long ago because of one or more of the decades-old events contained in Plaintiffs' lengthy historical account, Defs.' MTD at 11-13, ECF No. 10, is not persuasive in light of the narrow claim for consultation in 2016 identified by this Court. Defendants also argue that the statute of limitations would have begun to run in 1979, when the list of federally
For the foregoing reasons, Defendants' Motion to Dismiss (ECF No. 10), construed as a motion for summary judgment, is
Both the Departmental Manual and the Executive Order limit consultation to only tribes acknowledged by the Secretary of the Interior and included on a federal list. See Department Manual § 4.3(A) (defining an Indian Tribe which must be consulted as "[a]ny American Indian or Alaska Native tribe, band, national, pueblo, village, or community that the Secretary of the Interior acknowledges to exist as an Indian tribe pursuant to the Federally Recognized Tribe List Act of 1994"); Exec. Order No. 13,175 § 1(b) (defining an Indian Tribe as "an Indian or Alaska Native tribe, band, nation, pueblo, village, or community that the Secretary of the Interior acknowledges to exist as an Indian tribe pursuant to the Federally Recognized Indian Tribe List Act of 1994"). Although Plaintiffs repeatedly make the contrary claim that "MSIM does not have to apply to the Department to be `recognized' prior to seeking its right of consultation as an `acknowledged' tribe," apparently because "there is a distinct difference between an `acknowledged tribe' and a `recognized tribe,'" Pls.' Opp'n at 24, ECF No. 13, they offer no authority for this proposition.
Plaintiffs further cite two Department of the Interior documents from 1935 as evidence that the Department "recognize[d]" the MSIM after the 1934 passage of the Indian Reorganization Act, Compl. ¶¶ 50-54, although both documents describe the conclusions of the Department that at least some MSIM members cannot be recognized as a tribe. See generally note 8, infra.
Plaintiffs' complaint alludes to a new set of rules adopted by the Department of the Interior for handling Secretarial elections. Compl. ¶¶ 123-125, see also 80 Fed. Reg. 63094. Although it appears that Plaintiffs believe the new rules are improper in some way, Plaintiffs do not explain what the new rules change or why these changes are impermissible. The Court understands Plaintiffs' reference to the new rules to refer only to Plaintiffs' claim that the Defendants' "policies, practices, and customs violate the rights of the [MSIM] by not consulting directly with it" concerning the secretarial elections. Compl. ¶¶ 77-80, 125.
Compl. ¶ 173. Plaintiff's surreply elaborates on their argument concerning (2), an area of land at Lake Pepin, which Plaintiffs apparently believe they are entitled to purchase through "equitable pricing," Pls.' Surreply at 1-2, 6, see also Act of July 17, 1854, 10 Stat. 304, App. 21.
In addition, Defendants seek for this Court to take judicial notice of the opposition to the motion to dismiss filed in the lawsuit Wolfchild v. Redwood County (Redwood County), 824 F.3d 761 (8th Cir. 2016), cert. denied ___ U.S. ___, 137 S.Ct. 447, 196 L.Ed.2d 329 (2016). Fed. Defs.' Mot. Judicial Notice, ECF No. 11. Plaintiffs do not oppose judicial notice. The Federal Rules of Evidence permit a court to take judicial notice of facts that "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b)(2). Because a publicly available court filing meets these criteria, the Court grants Defendants' motion for judicial notice. See SEC v. Bilzerian, 112 F.Supp.2d 12, 15 (D.D.C. 2000), aff'd, 75 Fed. Appx. 3 (D.C. Cir. 2003) ("Per [the defendant's] request, the Court takes judicial notice of the briefs and petition for rehearing filed with the United States Court of Appeals for the Eleventh Circuit." (citing Fed. R. Evid. 201)).
Finally, construing Defendants' motion to dismiss as incorporating a motion to waive compliance with Local Civil Rule 7(n), Defs.' MTD at 1 n.1, ECF No. 10, the Court grants the motion because the administrative record is not necessary for its decision here.
Here, such conversion is appropriate. See Bowe-Connor v. Shinseki, 845 F.Supp.2d 77, 85-86 (D.D.C. 2012) (holding that a district court may exercise its discretion to convert a motion to dismiss into a motion for summary judgment when it would be "fair to both parties" (citations omitted)). In this case, Plaintiffs were on-notice after Defendants' motion to dismiss that the exhaustion of administrative remedies was at issue. See Defs.' MTD at 16-20, ECF No. 10. Plaintiffs addressed these concerns in part, but did not claim to have taken any steps toward using administrative remedies or cite any documents in their opposition. See Pls.' Opp'n at 37-40, ECF No. 13; see also Munsell v. Dep't of Agric., 509 F.3d 572, 592 (D.C. Cir. 2007) (upholding district court's decision as a grant of summary judgment because the Defendants raised exhaustion in their motion to dismiss and the parties addressed it). The Court therefore converts Defendants' motion into one for summary judgment.
However, because the D.C. Circuit has not yet addressed the application of Kwai Fun Wong to § 2401(a), this Court continues to follow the D.C. Circuit's prior conclusion until the D.C. Circuit addresses it in the first instance. See, e.g., Horvath v. Dodaro, 160 F.Supp.3d 32, 43 n.9 (D.D.C. 2015) ("Nonetheless, because the D.C. Circuit Court of Appeals has explicitly held that section 2401(a) is jurisdictional, see Spannaus v. U.S. Dept. of Justice, 824 F.2d 52 (D.C.Cir. 1987), and because the Supreme Court's holding in Wong is limited to the section 2401(b), Circuit precedent remains binding on this Court[.]"); see also, e.g., Huffman v. Kelly, 239 F.Supp.3d 144, 154, 2017 WL 932949, at *5 (D.D.C. 2017); In re Chaplaincy, No. 1:07-269, 2016 WL 541126, at *3 (D.D.C. Feb. 9, 2016).
