Historical E. Pequot Tribe v. Office of Fed. Acknowledgment

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HISTORICAL EASTERN PEQUOT TRIBE, Plaintiff, v. OFFICE OF FEDERAL ACKNOWLEDGMENT, Defendant.

Civil Action No. 23-54 (JEB)

United States District Court, District of Columbia

November 1, 2023

MEMORANDUM OPINION

JAMES E. BOASBERG CHIEF JUDGE

Confronted with the daunting task of choosing a whaling ship on which to voyage, Ishmael selects the long-seasoned and weather-stained Pequod. “Pequod, you will no doubt remember was the name of a celebrated tribe of Massachusetts Indians,” he says, “now extinct as the ancient Medes.” Herman Melville, Moby-Dick 77 (Penguin Books 1992) (1851).

As reliable a narrator as Ishmael usually was, here he was wrong twice over. It turns out the Pequots are neither local to Massachusetts nor extinct. In fact, they have been living in Connecticut for centuries, and one group of them - the Historical Eastern Pequot Tribe - has been attempting to gain federal recognition for over fifty years. Its most recent attempt came in 2016, when the Tribe wrote to the Department of the Interior's Office of Federal Acknowledgment seeking recognition. OFA wrote back, explaining that the Tribe was ineligible. The Tribe tried to appeal, and an administrative law judge concluded - in an opinion styled a “Recommended Decision” - that the Tribe's purported appeal should be dismissed.

Six years later, the Tribe filed this action against OFA. It challenges not Melville's apparent spelling, geography and history errors, but rather the Department's alleged delay in issuing a final determination on the ALJ's Recommended Decision, which, it says, is unreasonable under the Administrative Procedure Act. Plaintiff also asks the Court to review “any decision deemed final” under the APA's arbitrary-and-capricious standard and to order “the Bureau of Indian Affairs to acknowledge that [Plaintiff is] an American Indian tribe.” ECF No. 17 (Second Am. Compl.) at 5. OFA now moves to dismiss, advancing both jurisdictional and merits arguments. As the Court concludes that Plaintiff lacks standing to bring an unreasonable-delay challenge and that its other two claims are deficient, it will grant the Motion.

I. Background

A. Legal Background

In the context of federal Indian law, “recognition” or “acknowledgment” refers to a “formal political act confirming the tribe's existence as a distinct political society, and institutionalizing the government-to-government relationship between the tribe and the federal government.” Cal. Valley Miwok Tribe v. United States, 515 F.3d 1262, 1263 (D.C. Cir. 2008) (citation omitted); see 25 C.F.R. § 83.11. Federally recognized tribes are entitled to a panoply of benefits that non-recognized tribes are not. Id. at 1263-64; see 25 C.F.R. § 83.2. There are three ways a tribe may be recognized: (1) through an act of Congress, (2) through the procedures in 25 C.F.R. Part 83, or (3) through a federal court's decision. See 25 U.S.C. § 5130 (note). Only the second is relevant here.

A tribe seeking recognition under Part 83 must submit a “documented petition” establishing that it meets certain criteria, including that it “has been identified as an American Indian entity” since 1900, “comprises a distinct community” that has existed since then, and has also “maintained political influence or authority over its members” since then. See 25 C.F.R. §§ 83.11, 83.20. If the petitioner can prove that it was “previously acknowledged as a federally recognized Indian tribe,” however, it need not establish that it meets those criteria and may instead demonstrate that it satisfies more limited criteria. Id. § 83.12. Conversely, if the petitioner was previously denied acknowledgment under Part 83, it “cannot [subsequently] be acknowledged.” Id. § 83.4(d).

For each documented petition, OFA publishes in the Federal Register either a “positive” or “negative” “proposed finding,” summarizing its analysis of whether the petitioner meets the applicable criteria. Id. §§ 83.26(b)(3)-(5), 83.33. That proposed finding is followed by a comment period and a response period, after which a petitioner subject to a negative proposed finding may elect a hearing before an administrative law judge. Id. §§ 83.35-83.38. After any such hearing, the ALJ issues a recommended decision, which is sent to the Assistant Secretary of Indian Affairs (AS-IA). See 43 C.F.R. § 4.1051(a); 25 C.F.R. § 83.39(d). The AS-IA then issues a final determination in the Federal Register. See 25 C.F.R. § 83.42.

B. Factual and Procedural Background

In the 1970s and 1980s, two factions of the Historical Eastern Pequot Tribe - the Eastern Pequot Indians of Connecticut and the Paucatuck Eastern Pequot Indians of Connecticut - sought federal acknowledgment under Part 83. See Second Am. Compl., ¶¶ 9-10. The AS-IA issued a “Final Determination” in 2002, concluding that the Tribe - represented by and consisting of those two factions - satisfied the acknowledgment criteria. See 67 Fed.Reg. 44,234 (Jul. 1, 2002); see also Second Am. Compl., ¶ 11. Pursuant to the regulations then in effect, see 25 C.F.R. § 83.11(a)(1) (2005), the State of Connecticut and several municipalities sought reconsideration. See Second Am. Compl., ¶ 12. Finding multiple grounds for reconsideration, the Interior Board of Indian Appeals vacated and remanded the not-very-aptly titled Final Determination “for further work and reconsideration.” In re Fed. Acknowledgment of the Historical E. Pequot Tribe, 2005 WL 2672008 (I.B.I.A. May 12, 2005).

In 2005, the AS-IA issued a “Reconsidered Final Determination” concluding that the Tribe did not satisfy the criteria for acknowledgment. See 70 Fed.Reg. 60,099 (Oct. 14, 2005); see also Second Am. Compl., ¶ 13. The Reconsidered Final Determination became final and effective upon its publication, see 25 C.F.R. § 83.11(h)(3) (2005); 70 Fed.Reg. at 60,099, 60,101, but the Tribe nonetheless sought reconsideration. See Second Am. Compl., ¶ 14. The Interior Board of Indian Appeals dismissed that request for lack of jurisdiction. In re Fed. Acknowledgment of the E. Pequot Indians of Conn. and the Paucatuck E. Pequot Indians of Conn., 2006 WL 596715 (I.B.I.A. Jan. 13, 2006). Not content with that dismissal, a group purporting to represent the Tribe filed an action in federal court, which was dismissed. Historic E. Pequots v. Salazar, 934 F.Supp.2d 272 (D.D.C. 2013).

Fast forward to May 2016, when the Tribe, hoping that a different route might yield a successful outcome, sent OFA a packet of materials asking it to “declare and reaffirm” the Tribe's “status as a previously federally acknowledged tribe.” ECF No. 16-1 (2016 OFA Letter); see Second Am. Compl., ¶ 16. OFA responded with a letter advising the Tribe that the Part 83 process - i.e., filing a “documented petition,” 25 C.F.R. § 83.20 - was “the sole administrative avenue for acknowledgement as an Indian tribe,” and that an entity that has been previously denied acknowledgment under Part 83 was ineligible. See 2016 OFA Letter; ECF No. 19 (Opp.) at 6. OFA explained that, because the Tribe had “exhausted both its administrative and judicial remedies,” its only “alternative avenue to obtain Federal acknowledgment would be congressional legislation.” 2016 OFA Letter. Treating that letter as if it were a “negative proposed finding” published in the Federal Register and invoking the regulation authorizing a petitioner receiving such a finding to elect a hearing before an ALJ, see 25 C.F.R. § 83.38, the Tribe sought such a hearing. See 2016 OFA Letter.

In January 2017, an ALJ issued a “Recommended Decision,” concluding that the Tribe's notice of appeal and hearing request should be dismissed for lack of jurisdiction. See ECF No. 16-2 (Recommended Decision); see also Second Am. Compl., ¶ 17. He explained that the Tribe was a “previously denied petitioner” that could not be acknowledged under Part 83 and that, in any event, the Tribe had not received a “negative proposed finding” appealable under 25 C.F.R. § 83.38. See Recommended Decision at 16. As described in the analysis below, there is some dispute about what happened next.

In any event, six years after the ALJ issued the Recommended Decision, Plaintiff filed this suit against OFA in January 2023. See ECF No. 1 (Compl.). It subsequently filed an Amended Complaint and a Second Amended Complaint, the latter of which is the operative pleading here. See ECF No. 2 (Am. Compl.); Second Am. Compl. Parsing the causes of action in that Second Amended Complaint is no easy task, not least because two seem to appear only in the “Prayer for Relief.” Second Am. Compl. at 5. As best the Court can tell, and reading the operative Complaint generously, Plaintiff appears to advance three claims: (1) the Department's alleged delay in acting on the Recommended Decision is unreasonable under the APA, see id., ¶¶ 2, 18-20; see also 5 U.S.C. §§ 555(b), 706(1); (2) insofar as the Department has acted on the Recommended Decision, its action was arbitrary, capricious, or contrary to law under the APA, see Second Am. Compl. at 5; see also 5 U.S.C. § 706(2)(A); and (3) the Department should be ordered to federally acknowledge the Tribe. See Second Am. Compl. at 5. Defendant now moves to dismiss. See ECF No. 16 (MTD).

II. Legal Standard

Defendant's Motion invokes the legal standards for dismissal under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). When a defendant brings a Rule 12(b)(1) motion, the plaintiff must demonstrate that the court indeed has subject-matter jurisdiction to hear his claims. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); U.S. Ecology Inc. v. U.S. Dep't of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000). “Because subject-matter jurisdiction focuses on the court's power to hear the plaintiff's claim, a Rule 12(b)(1) motion [also]...