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Shinnecock Indian Nation v. Kempthorne

September 30, 2008

THE SHINNECOCK INDIAN NATION, PLAINTIFF,
v.
DIRK KEMPTHORNE, SECRETARY OF THE DEPARTMENT OF THE INTERIOR, JAMES E. CASON, ASSOCIATE DEPUTY SECRETARY OF THE DEPARTMENT OF THE INTERIOR, AND THE UNITED STATES DEPARTMENT OF THE INTERIOR, DEFENDANTS.



The opinion of the court was delivered by: Joseph F. Bianco, District Judge

MEMORANDUM AND ORDER

Plaintiff the Shinnecock Indian Nation (the "Nation" or "plaintiff"), brings this action against defendants Dirk Kempthorne, Secretary of the Department of the Interior, James E. Cason, Associate Deputy Secretary of the Department of the Interior, and the United States Department of the Interior (collectively, "Interior" or "defendants"), pursuant to the Administrative Procedure Act, 5 U.S.C. § 551 (the "APA"), arising from Interior's alleged continuing refusal to acknowledge the federal Indian tribal status of the Nation, as well as Interior's alleged refusal to fulfill its trust obligations regarding the Nation's land claim pursuant to the Indian Non-Intercourse Act of 1834, 25 U.S.C. § 177 (the "NIA").

In particular, the Nation's First Amended Complaint asserts the following four APA claims against Interior: (1) that Interior violated and continues to violate the APA and the Due Process Clause of the Fifth Amendment by refusing to acknowledge that the Nation is an Indian tribe entitled to the substantive rights, protections, and assistance flowing from that status under federal law, and that such refusal constitutes a deprivation of valuable property and other rights of the Nation and its members; (2) that Interior violated and continues to violate the APA and the NIA by continuing to deny the Nation's request to Interior, in 2005, that Interior join in a land claim filed by the Nation and, specifically, through Interior's refusal to investigate and take such action as may be warranted under the circumstances with respect to this land claim pursuant to the NIA; (3) that Interior violated and continues to violate the APA and the Federally Recognized Indian Tribes Act of 1994, 25 U.S.C. § 479a et seq. (the "List Act"), by failing to include the Nation on Interior's two most recently published lists of federally-recognized Indian tribes; and (4) that Interior violated and continues to violate the APA and the Federal Acknowledgment Regulations, 25 C.F.R. 83 (the "Part 83 regulations") by unreasonably delaying Interior's decision on the Nation's petition for federal acknowledgment for many years.

The first and third claims are premised on the Nation's contention that it has already been acknowledged as an Indian tribe, in the past, by all three branches of government. First, the Nation contends that Interior and the Commission of Indian Affairs recognized the Nation in 1915 and confirmed its recognition in reports from 1916 to 1958. Second, the Nation asserts that Congress recognized the Shinnecock Indians, the Shinnecock Indian Reservation, and the Shinnecock Nation in 1948 and 1950 in legislation allocating federal, state, and tribal jurisdiction over Indians and Indian Reservations in New York State. Finally, the Nation argues that the 2005 decision by the Honorable Thomas C. Platt in New York v. Shinnecock Indian Nation, see 400 F. Supp. 2d 486 (E.D.N.Y. 2005), which found "that the Shinnecock Indians are in fact an Indian Tribe" as a matter of federal common law under Montoya v. United States, 180 U.S. 261 (1991) and United States v. Candelaria, 271 U.S. 432 (1926), 400 F. Supp. 2d at 489, has the legal effect of federal recognition equivalent to recognition by Interior or Congress.

Defendants now move to dismiss the First Amended Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth below, with the exception of the Nation's "unreasonable delay" claim under the APA, the claims must be dismissed as a matter of law because there is no legal basis for this Court to review the "recognition" issue under the APA until there has been a final agency action with respect to the petition. The issue of federal recognition of an Indian tribe is a quintessential political question that, in the first instance, must be left to the political branches of government and not the courts. In Article I, Section 8 of the United States Constitution, our Founding Fathers explicitly granted Congress the authority to regulate commerce with Indian tribes and Congress has delegated general responsibility over matters pertaining to Indian tribes to the Department of the Interior. Although the Nation asserts that Congress recognized it as a Tribe and established a government-togovernment relationship in legislation over fifty years ago, that legislation did no such thing. Similarly, although the Nation points to evidence that it was recognized at some point in the past by the Department of the Interior as an Indian Tribe, it is undisputed that Interior does not currently recognize a government-to-government relationship with the Nation and that its petition is still pending with Interior. Therefore, it is not the role of the court to usurp the constitutionallyprotected province of the politically-elected branches of government by attempting to address the merits of the recognition issue before the Secretary of the Interior has acted.

Moreover, the 2005 court decision concluding that the Nation was an "Indian Tribe" under the common law standard does not, and cannot, alter this constitutional equation. In other words, although the Court clearly had the authority to determine the common law tribe issue for purposes of deciding the limited issue before it, relating to the proposed construction of a casino on Shinnecock land, there is no legal authority for the proposition that such a judicial decision in a particular case allows a tribe to completely bypass the recognition procedure established by the political branches and create a government-to-government relationship through judicial fiat. In fact, in Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d 51 (2d Cir. 1994), the Second Circuit specifically noted the following: "The Montoya/Candelaria definition and the [Bureau of Indian Affairs (the "BIA")] criteria both have anthropological, political, geographical and cultural bases and require, at a minimum, a community with a political structure. The two standards overlap, though their application might not always yield identical results." 39 F.3d at 59 (emphasis added). Therefore, the Court cannot interfere at this juncture by reviewing the merits of the recognition issue pending with the Interior, but rather must await the outcome of that review. Accordingly, the first and third claims under the APA must be dismissed because there has not been a final agency action by Interior. The second claim, relating to Interior's failure to investigate and take action in connection with the Nation's 2005 land claim litigation, is similarly defective and must be dismissed because there was no final agency action.

Of course, even though the Court cannot review the merits of the recognition issue before Interior reaches its decision, the Court does have authority under the APA to review whether Interior has unreasonably delayed its decision on that issue. In particular, as noted above, the Nation has set forth detailed allegations in support of their contention that the petition has been pending for years with no action by Interior and that such delay is "unreasonable" under the APA. These allegations of complete inaction by Interior on the Nation's petition for many years, without a clear explanation, certainly constitutes a plausible claim for "unreasonable delay" that requires further inquiry by the Court and survives a motion to dismiss. If the Nation is ultimately successful on this "unreasonable delay" claim, the proper remedy is not for the Court to make the recognition decision ahead of Interior, but rather to direct that Interior make its decision within a certain, specified time frame. Thus, dismissal of the Nation's fourth claim for "unreasonable delay" under the APA is unwarranted and the parties will proceed with discovery on this issue, absent a binding commitment by Interior to a specific, reasonable timeframe for its final determination.

I. BACKGROUND

A. he APA and the Finality Principle

As stated supra, the Nation brought this lawsuit pursuant to the APA. Under the APA, "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702. Specifically, "[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject" to such judicial review. 5 U.S.C. § 704. Thus, as the Second Circuit has observed, a "plaintiff may obtain judicial review of an action taken by an agency only if (1) it constitutes agency action, a term of art defined by the APA, and (2) the action was final." Benzman v. Whitman, 523 F.3d 119, 132 (2d Cir. 2008) (citations and quotation marks omitted). In particular, the Second Circuit has explained that,

[u]nder the APA, an action is "final" insofar as it is not a "preliminary, procedural, or intermediate agency action or ruling"; a ruling may be final whether or not it may be subject to appeal or reconsideration "unless the agency otherwise requires by rule and provides that the a c tion meanwhile is inoperative." [5 U.S.C. § 704.] The "core question" for determining finality is "whether the agency has completed its decisionmaking process, and whether the result of that process is one that will directly affect the parties."

Lunney v. United States, 319 F.3d 550, 554 (2d Cir. 2003) (quoting Dalton v. Specter, 511 U.S. 462, 470 (1994)). Further, "the finality requirement of Section 10(c) of the APA, 5 U.S.C. § 704,... is to be interpreted in a pragmatic way, with an eye toward protecting agencies from the disruption of piecemeal appeals and toward insuring that judicial review involves concrete disputes over meaningful interests, rather than abstract disputes over hypothetical governmental actions." Nat'l Wildlife Federation v. Goldschmidt, 677 F.2d 259, 263 (2d Cir. 1982) (citations omitted); see also Acquest Wehrle LLC v. United States, No. 06-CV- 654C, 2008 U.S. Dist. LEXIS 47936, at *19 (W.D.N.Y. June 20, 2008) ("The APA's explicit requirement that the agency action be 'final' before the claim for review can be brought in federal court is jurisdictional, and serves several functions: For example: It allows the agency an opportunity to apply its expertise and correct its mistakes, it avoids disrupting the agency's processes, and it relieves the courts from having to engage in piecemeal review which is at the least inefficient and upon completion of the agency process might prove to have been unnecessary.") (citation and quotation marks omitted).

B. The Constitutional, Statutory, and Regulatory Framework for Federal Tribal Recognition

(1) The Authority of Congress and Its Delegation to Interior

Article I, Section 8 of the United States Constitution grants Congress the authority to regulate commerce with Indian tribes. See U.S. Const. Art. I, § 8. Congress has delegated implementation of its statutes dealing with Indian affairs to Interior. See 43 U.S.C. § 1457. In particular, in 1832, "Congress established the position of Commissioner of Indian Affairs (currently within the Department of the Interior) and delegated to the Commissioner the authority to manage all Indian affairs." Golden Hill, 39 F.3d at 57. "The Department of the Interior did not actively begin to engage in recognition determinations until after the passage of the Indian Reorganization Act of 1934. After passage of the Indian Reorganization Act recognition proceedings were necessary because the benefits created by it were made available only to descendants of 'recognized' Indian tribes." Golden Hill, 39 F.3d at 57 (citation omitted) (quoting 25 U.S.C. § 479). Interior is bound to publish in the Federal Register "a list of all Indian tribes entitled to receive services from the Bureau [of Indian Affairs (the "BIA")] by virtue of their status as Indian tribes." 25 C.F.R. § 83.5(a); 25 U.S.C. § 479a.

(2) Petitioning for Federal Recognition

In 1978, Interior promulgated the Part 83 regulations, which establishes the process for the review and approval of petitions for acknowledgment of Indian tribes. See 25 C.F.R. §§ 83.1-83.13; see also 43 Fed. Reg. 39361 (1978); 59 Fed. Reg. 9280 (1994). According to these regulations, the BIA's approval of a tribe's petition under Part 83 "is a prerequisite to the protection, services, and benefits of the Federal government available to Indian tribes by virtue of their status as tribes. Acknowledgment shall also mean that the tribe is entitled to the immunities and privileges available to other federally acknowledged Indian tribes by virtue of their government-to-government relationship with the United States as well as the responsibilities, powers, limitations and obligations of such tribes. Acknowledgment shall subject the Indian tribe to the same authority of Congress and the United States to which other federally acknowledged tribes are subjected." 25 C.F.R. 83.2.

(3) The Procedure for Petitions

Under the Part 83 regulations, Indian groups apply for acknowledgment by filing a "documented petition" that must provide "thorough explanations and supporting documentation" demonstrating that the petitioner meets the seven mandatory criteria set forth in the regulations. See 25 C.F.R. §§ 83.6(c), 83.7. The burden of proof is on the petitioning group to submit evidence that establishes each of the following seven criteria: (a) the petitioner has been identified as an American Indian entity on a substantially continuous basis since 1900; (b) a predominate portion of the petitioning group comprises a distinct community from historical times until the present; (c) the petitioner has maintained tribal political influence or other authority over its members as an autonomous entity throughout history; (d) a copy of the group's present governing document or, in its absence, a statement describing in full its membership criteria and current governing procedure; (e) the group's membership consists of individuals who descend from a historical Indian tribe or from historical tribes which combined and functioned as a single autonomous entity; (f) the membership of the petitioning group is composed principally of persons who are not members of any other North American Indian tribe; and (g) Congress has not expressly terminated or forbidden a Federal relationship with the group. See id. § 83.7(a)-(g).

Upon receipt of a documented petition under the regulations, the Assistant Secretary - Indian Affairs ("AS-IA") reviews the petition and its supporting documentation and provides technical assistance regarding additional research needed to support the petitioner's claims. See id. § 83.10(b). Interested parties, such as the relevant state governors and attorneys general, are provided notice of the petition and the opportunity to become active participants in the process, along with other third parties, such as local governments, other federally recognized Indian tribes, and other non-recognized Indian groups that might be affected by an acknowledgment determination. See id. §§ 83.1, 83.9.

Once AS-IA determines that the documentation in the petition is adequate to permit a full review, the petition is considered "ready" for a full evaluation by the AS-IA and is placed on the "Ready, Waiting for Active Consideration" list (the "ready list"). See id. § 83.10(d). The acknowledgment regulations specify that "[t]he order of consideration of documented petitions shall be determined by the date of the Bureau's notification to the petitioner that it considers that the documented petition is ready to be placed on active consideration." See id.

The actual evaluation of the petition and its evidence under the regulatory criteria by the agency professional staff occurs during "active consideration." During active consideration, the AS-IA continues the review and publishes proposed findings in the Federal Register. See id. §§ 83.10 (g), (h). The proposed findings are preliminary decisions as to whether the petitioning group meets the regulatory criteria based on the documentation before the agency at the time.

After issuance of notice in the Federal Register of the proposed findings, there is a public comment period of 180 days, with extensions granted for good cause. See id. § 83.10(i). During this time period, the AS-IA provides informal and formal technical assistance, and petitioners and third parties may submit additional arguments and evidence in support of, or in opposition to, the proposed findings. See id. § 83.10(i), (j). Following the close of the public comment period, the petitioner has a reply period, during which it responds to comments submitted during the public comment period. See id. § 83.10(k).

Following consultation, id. § 83.10(l), the final phase of active consideration begins. The OFA professional staff evaluates the evidence in the record, prepares a summary of the evidence under the regulatory criteria and recommends to the AS-IA whether the petitioner meets the criteria. The AS-IA then issues a final determination on the status of the petitioner. See id. § 83.10(l)(2). This determination is not deemed to be a final and effective agency action, however, unless a period of 90 days passes without the filing of a request for reconsideration with the Interior Board of Indian Appeals ("IBIA"). See id. § 83.11(a)(2). If there is a request for reconsideration before the IBIA, the IBIA may affirm or vacate the final determination, or refer issues to the Secretary of the Interior (the "Secretary") for further response or evaluation. See id. §§ 83.11(e), (f).

C. The Nation's Federal Acknowledgment Petition

As stated supra, plaintiff has filed a petition with Interior for federal tribal recognition pursuant to the Part 83 regulations. Set forth below are facts regarding the history of this petition that are relevant to the instant motion.*fn1

(1) Facts Contained in the Complaint

According to the complaint, the Nation filed a petition for federal tribal recognition in 1978. (Compl. ¶ 3.) Plaintiff alleges that, at the time it was filed, the petition was "fourth in order of priority of consideration" based on applicable regulations. (Compl. ¶ 86.) Subsequently, "for more than fifteen years the Department failed to take any action" on the petition, including any notification to the Nation of any obvious deficiencies or significant omissions in the petition, (Compl. ¶¶ 88, 91), even though the regulations in place at that time required the Interior to make such notification if applicable. (Compl. ¶ 88.)

In particular, the complaint states that, in 1994, Interior amended the regulations under which the Nation first filed its petition. (Compl. ¶ 92.) As a consequence, and "[a]lthough it had never withdrawn the petition and had never been notified by the Department of any obvious deficiencies or significant omissions in that petition," the Nation filed another petition in September 1998. (Compl. ¶ 95.)

According to plaintiff, "[o]n or about December 22, 1998, the Department issued a Technical Assistance Letter to the Nation, requesting additional information. The Nation responded to the Technical Assistance Letter in February 2003." (Compl. ¶ 96.)

Plaintiff further alleges that, "[o]n or about September 9, 2003, the Department notified the Nation that it deemed the Shinnecock Nation's acknowledgment petition 'ready' and awaiting active consideration." (Compl. ¶ 97.) However, "[o]n or about July 26, 2006, the Department issued a second Technical Assistance Letter to the Nation. The Nation responded to the second Technical Assistance Letter on or about November 22, 2006." (Compl. ¶ 98.)

According to the Nation, "[t]o date, nearly thirty years from the Nation's initial filing of its 1978 acknowledgment petition, and nearly nine years after the filing of its supplemental 1998 acknowledgment petition, the Department has not yet undertaken active consideration of the Nation's Petition." (Compl. ¶ 99.) Further, plaintiff alleges that the "Department has advised the Nation that it believes it may take as long as until the year 2014 before the Department may make a final determination on the Nation's Petition, without binding itself even to this schedule." (Compl. ¶ 99.)

(2) Facts That Developed After This Motion Was Briefed

By letter dated May 23, 2008, after this motion was fully briefed, defendants notified the Court of a new policy promulgated by Interior that would permit tribes that meet certain criteria to bypass the regulatory priority order described supra. Interior enclosed a letter it had sent to plaintiff, also dated May 23, 2008, informing plaintiff that the Nation "is the only petitioner presently on the 'Ready' list that might qualify under the new waiver policy.... If the genealogical documentation so indicates, the Shinnecock petition will be eligible under this policy to be the top petition on the 'Ready' list." (Letter from Carl J. Artman, dated May 23, 2008, at 2.) Interior further stated that, "[a]ssuming the genealogical documentation indicates that the Shinnecock petitioner is eligible for a waiver under this new policy, the Department would anticipate placing the Shinnecock petition on active consideration in the late fall of 2008." (Letter from Carl J. Artman, dated May 23, 2008, at 2.)

Subsequently, in accordance with a request the Court made during a conference on June 19, 2008, the parties conferred regarding a potential time limit for the remainder of the acknowledgment process and submitted a letter regarding the status of these negotiations on August 6, 2008. According to this letter, although defendants agreed in theory to set a time limit for plaintiff's petition, the parties could not agree as to the level of "supervision and enforcement by the Court of Defendants' compliance with the proposed timeframes." (Status Letter, dated August 6, 2008, at 2.)

II. PROCEDURAL HISTORY

The Nation filed its initial complaint in this action on September 14, 2006. Defendants moved to dismiss this initial complaint on February 16, 2007, plaintiff responded on March 16, 2007, and defendants submitted their reply on March 30, 2007. The Court held oral argument on June 19, 2007 (the "June argument"). Following the June argument, and prior to any Court decision on the pending motion, plaintiff requested an opportunity to amend the initial complaint, which the Court granted. On October 5, 2007, plaintiff filed its First Amended Complaint, which is the subject of the instant motion. On December 14, 2007, defendants moved to dismiss the complaint. Plaintiff responded on February 15, 2008, and defendants submitted their reply on March 7, 2008. On April 18, 2008, the Court held oral argument (the "April argument").*fn2 By letters dated May 12, ...


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