MACKINAC TRIBE v. JEWELL

Filing 19

MEMORANDUM OPINION re 18 Order granting motion for summary judgment. Signed by Judge Ketanji Brown Jackson on 03/31/15. (lckbj3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

MACKINAC TRIBE,
PLAINTIFF,
v.
SALLY JEWELL,
DEFENDANT.

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Civ. No. 14-cv-0456 (KBJ)

MEMORANDUM OPINION
Indian tribes generally operate within a different legal framework than other
political entities within the United States. Under federal law, tribes are entitled to
certain benefits, including access to federal funding for healthcare, education, and other
social programs, 25 U.S.C. § 13, and are also subject to certain restrictions, including a
limited right to sell tribal land, 25 U.S.C. § 177. Moreover, because a tribe retains
some “inherent sovereign authority” independent of the United States and the state in
which it is located, Okla. Tax Comm’n v. Citizen Band Potawatomi Tribe of Okla., 498
U.S. 505, 509 (1991), Indian tribes enjoy a “government-to-government” relationship
with the United States, Cal. Valley Miwok Tribe v. Jewell, No. 11-CV-00160 (BJR),
2013 WL 6524636, *97 (D.D.C. Dec. 13, 2013). Significantly, however, before an
Indian tribe can qualify for this special status, it must be “recognized” by the United
States and must organize a tribal government. See Cal. Valley Miwok Tribe v. United
States, 515 F.3d 1262, 1264 (D.C. Cir. 2008).
Plaintiff Mackinac Tribe aspires to attain the legal status of a recognized Indian
tribe. Plaintiff maintains that, although it has not sought formal recognition and

reorganization through the administrative process that the Department of Interior
prescribes, the United States government recognized the Mackinac Tribe in an 1855
treaty, and thus the Mackinac Tribe is entitled to the benefits that recognized Indian
tribes enjoy under federal law. Plaintiff has filed the instant lawsuit against Interior
Secretary Sally Jewell, asking this Court for both a declaration that the Mackinac Tribe
is a federally recognized Indian tribe for the purpose of the Indian Reorganization Act
(“IRA”), 25 U.S.C. § 476, and an order directing the Secretary to aid Plaintiff in
organizing a tribal government pursuant to that statute.
Before this Court at present is Defendant’s motion to dismiss Plaintiff’s
compliant on various grounds, including sovereign immunity and the failure to exhaust
administrative remedies. Plaintiff responds that Congress has waived sovereign
immunity for actions of this nature, and also that the Mackinac Tribe need not follow
the agency’s formal administrative recognition process, which, according to Plaintiff, is
not the exclusive path to reorganization under the IRA. As explained fully below, this
Court concludes that Congress has waived the immunity of the United States with
respect to Plaintiff’s claims; however, the Court also holds that Plaintiff must exhaust
its administrative remedies by undergoing the administrative process for formal
recognition before it may file a lawsuit seeking the benefits of the IRA. And because
there is no genuine issue of material fact regarding the Mackinac Tribe’s failure to
exhaust its administrative remedies prior to bringing the instant action, the Secretary’s
Motion for Summary Judgment (as the Court has construed her Motion to Dismiss) will
be GRANTED. A separate order consistent with this opinion will follow.

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I.

BACKGROUND
A.

Federal Recognition And Its Statutory Benefits
Federal “recognition” of an Indian tribe is a term of art that conveys a tribe’s

legal status vis-à-vis the United States—it is not an anthropological determination of
the authenticity of a Native American Indian group. See Mark D. Myers, Federal
Recognition of Indian Tribes in the United States, 12 Stan. L. & Pol’y Rev. 271, 271
(2001) (“Presently, the recognition process is widely misunderstood . . . as conferring
legitimacy. Recognition is a certification and documentation process, not a
transformative one; it is analogous to a citizen’s obtaining a passport, not an alien’s
naturalization.” (internal quotation marks and citation omitted)). Federal recognition
specifically denotes “the federal government’s decision to establish a government-togovernment relationship by recognizing a group of Indians as a dependent tribe under
its guardianship[,]” id. at 272, and such recognition “is a prerequisite to the protection,
services, and benefits from the Federal Government available to Indian tribes by virtue
of their status as tribes,” 25 C.F.R. § 83.2.
Notably, for hundreds of years, there was no uniform procedure for recognizing
Indian tribes, and tribes were often recognized through treaties, legislation, and judicial
decisions. See Felix Cohen, Handbook of Federal Indian Law § 3.02[4]–3.02[5] at 139–
41. Consequently, tribal recognition law developed through centuries of disjointed
theories, conflicting policies, and shifting attitudes of various branches of the United
States government towards tribes. See William W. Quinn, Jr., Federal Acknowledgment
of American Indian Tribes: Authority, Judicial Interposition, and 25 C.F.R. § 83, 17
Am. Indian L. Rev. 37, 39–44 (1992). This system created “anomalies . . . in which

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Indian tribes could be [recognized] for some purposes (e.g., depredations or takings
claims) but not for others (e.g., the provision of services and benefits to tribes by the
United States).” Id. at 43. Fortunately, “Congress, the administration, the national
Indian organization, and many tribal groups” worked together to resolve this
“longstanding and very difficult problem,” and in 1978, the Department of the Interior
promulgated uniform procedures by which Indian tribes may obtain recognition and
thereby establish a government-to-government relationship with the United States. 43
Fed. Reg. 39,361 (Sept. 5, 1978); see also 25 C.F.R. pt. 83, Procedures for Establishing
That an American Indian Group Exists as an Indian Tribe. 1 The procedures—called the
“Part 83 Process”—allow any Indian group to apply for federal recognition by
submitting a petition to the Department of the Interior with “detailed, specific
evidence,” 25 C.F.R. § 83.6, that proves the group is a “political and social community
that is descended from a historic tribe,” U.S. Gov’t Accountability Office, GAO-02-49,
Indian Issues: Improvements Needed in Tribal Recognition Process 1 (2001), and
“comprises a distinct community at present,” 25 C.F.R. § 83.7. See also Barbara N.
Coen, Tribal Status Decision Making: A Federal Perspective on Acknowledgment, 37
New Eng. L. Rev. 491, 496–97 (2003) (“The underlying premise of this requirement—
to demonstrate continuous tribal existence of the group—is that a tribe is a political, not
a racial, classification.”). 2

1

These regulations were revised in 1994, but the criteria for tribal recognition—sometimes referred to
as “acknowledgment” of tribal status—remained the same. See 59 Fed. Reg. 9,280 (Feb. 25, 1994);
Miami Nation of Indians of Ind., Inc. v. Babbitt, 112 F. Supp. 2d 742, 758 (N.D. Ind. 2000); 25 C.F.R.
pt. 83.
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Under the Part 83 Process, a tribe that seeks recognition must establish that: (a) the tribe “has been
identified as an American Indian entity on a substantially continuous basis[;]” (b) the tribe comprises a
“distinct community” at present; (c) the tribe “has maintained political influence or authority over its

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Once the Interior Department establishes that a tribe is a recognized political
entity through the Part 83 Process, the tribe may seek to reorganize itself pursuant to
the Indian Reorganization Act. See 25 U.S.C. § 476; see also 25 C.F.R. § 81, Tribal
Reorganization Under a Federal Statute. In adopting the IRA’s reorganization
procedures, Congress “specifically intended to encourage Indian tribes to revitalize
their self-government,” Fisher v. Dist. Court, 424 U.S. 382, 387 (1976), thereby
reversing prior policies of the federal government that had “destroyed Indian social and
political institutions,” Hearings on H.R. 7902 before the House Comm. on Indian
Affairs, 78 Cong. Rec. 11,729 (1934). Thus, while tribal recognition is the
establishment of a government-to-government relationship with the United States,
reorganization is a separate process pursuant to which the United States government
promotes the development of the governing structure of the newly recognized Indian
tribe.
The IRA states that “[a]ny Indian tribe shall have the right to organize for its
common welfare, and may adopt an appropriate constitution and bylaws, and any
amendments thereto[.]” 25 U.S.C. § 476(a). The statute further provides that the
constitution a tribe so adopts “shall become effective” if it is
(1)
ratified by a majority vote of the adult members of the
tribe or tribes at a special election authorized and called by
the Secretary under such rules and regulations as the Secretary
may prescribe; and
(2)
approved by the Secretary [of the Interior Department]
pursuant to subsection (d) of this section.
members as an autonomous entity from historical times until the present[;]” (d) the tribe has submitted
a “governing document including its membership criteria[;]” (e) the tribe’s members “descend from a
historical Indian tribe or from historical Indian tribes which combined and functioned as a single
autonomous political entity[;]” (f) the tribe’s membership “is composed principally of persons who are
not members of any acknowledged North American Indian tribe[;]” and (g) that Congress has not
“expressly terminated or forbidden” a federal relationship with the group. 25 C.F.R. § 83.7.

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Id. Moreover, the IRA also specifically addresses the content of a tribal constitution,
requiring the document to “vest in such tribe or tribal council” various “rights and
powers[,]” including the right to “employ legal counsel; to prevent the sale, disposition,
lease, or encumbrance of tribal lands . . . ; and to negotiate with the Federal, State, and
local governments.” 25 U.S.C. § 476(e). 3
Significantly for present purposes, in addition to authorizing a tribal constitution
and setting forth other various rights, powers, privileges and immunities of Indian
tribes, the IRA also speaks directly to the duty of the Secretary of the Interior
Department to “call and hold an election” for ratification of the tribe’s constitution. 25
U.S.C. § 476(c)(1); see also Thomas v. United States, 189 F.3d 662, 664 (7th Cir. 1999)
(“Although these elections lay the very foundation for tribal self-governance, they must
be called, held, and approved by the United States Secretary of the Interior.” (citing 25
U.S.C. § 476)). The process begins with the tribe’s submission to the Secretary of a
request for an election to ratify its proposed constitution. See 25 U.S.C. §
476(c)(1)(A); 25 C.F.R. § 81.5(a). The Secretary’s duty to hold the ratification election
is nondiscretionary: once the Secretary receives such a request, the Secretary “shall”
call an election within 180 days, 25 U.S.C. § 476(c)(1)(A), and in the meantime, the
Secretary reviews the legality of the tribe’s proposed constitution, id. § 476(c)(2)(B).
The IRA provides that, if the tribe votes to adopt the proposed constitution, then the

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It is clear that Congress sought to promote effective tribal self-governance by emphasizing and
authorizing the adoption of a tribal constitution that confers rights and powers—much like the
constitutions of the United States and of the individual States are important foundational documents for
the establishment and operation of those governments. See 25 C.F.R. § 81.1(g); see also Felix Cohen,
Handbook of Federal Indian Law § 4.05[3] at 271–72 (“Tribal constitutions address basic tribal powers
in such important areas as membership, boundaries, jurisdiction, land use, elections, and the allocation
of authority within the tribal governing structure.”). In this respect, then, a tribe’s reorganization under
the IRA can be viewed as the capstone of a tribe’s formation of the separate government that the federal
recognition process permits.

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Secretary must approve the tribe’s constitution within 45 days of the election “unless
the Secretary finds that the proposed constitution . . . [is] contrary to applicable laws.”
Id. § 476(d)(1). Moreover, the statute clarifies that if the Secretary fails to act timely in
response to the results of the ratification election—i.e., “[i]f the Secretary does not
approve or disapprove the constitution . . . within the forty-five days”—then “the
Secretary’s approval shall be considered as given.” Id. § 476(d)(2). Furthermore and
finally, the IRA states that “[a]ctions to enforce the provisions of this section may be
brought in the appropriate Federal district court.” Id.
B.

The Instant Claims And Defenses
Plaintiff is the “modern historical successor” of the Mackinac Tribe, an

Algonquin Indian people who lived in what is now the state of Michigan prior to
European settlement of North America. (Compl. ¶¶ 1, 5, 15.) 4 In 2011, the Mackinac
Tribe submitted to the Department of the Interior a request for the organization of a
constitutional election pursuant to section 476(a) of the IRA. (See id. ¶ 34.) According
to Plaintiff’s complaint, the Interior Department not only failed to call the requested
election, it did not even respond to the Mackinac’s request. (See id. ¶ 35.)
Approximately three years later, on March 2, 2014, Plaintiff filed a two-count
complaint in this Court seeking a declaration that the Mackinac Tribe is a federally
recognized Indian tribe for IRA purposes and requesting an order directing the Interior
Secretary to hold a constitutional election so that the Mackinac can organize a tribal
government pursuant to the IRA. (See Compl. ¶¶ 36-45.) Although the complaint does

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Because this Court considers Plaintiff’s claims in the context of Defendant’s motion to dismiss, the
Court accepts the allegations in Plaintiff’s complaint as true and grants Plaintiff the benefit of all
inferences that can be derived from the facts alleged. See Am. Nat. Ins. Co. v. F.D.I.C., 642 F.3d 1137,
1139 (D.C. Cir. 2011).

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not state that the Mackinac have undertaken the formal Part 83 recognition process,
Plaintiff maintains that the federal government recognized the Mackinac Tribe in a
treaty between the United States and several different groups of Michigan Indians in
1855, and as such, the tribe asserts that it is entitled to the benefits of the IRA. (See
Pl.’s Opp. to Def.’s Mot. to Dismiss (“Pl.’s Opp.”), ECF No. 10, at 32-33.) 5
Instead of answering Plaintiff’s complaint, Defendant has moved to dismiss it.
(See Def.’s Mot. to Dismiss, ECF No. 7.) The primary thrust of Defendant’s motion is
the argument that this Court lacks subject matter jurisdiction over Plaintiff’s claims
because “Plaintiff has failed to set forth any waiver of the United States’ sovereign
immunity.” (Def.’s Mem. of Points and Authorities in Supp. of its Mot. to Dismiss
(“Def.’s Mem.”), ECF No. 7-1, at 21; see also Def.’s Reply Mem. in Supp. of its Mot.
to Dismiss (“Def.’s Reply”), ECF No. 12, at 21.) On this basis, Defendant maintains
that Plaintiff’s case should be dismissed pursuant to Federal Rule of Civil Procedure
12(b)(1). (See Def.’s Mem. at 22.) Defendant also contends that, even if the Court
moves beyond the threshold issue of sovereign immunity, the Court should dismiss
Plaintiff’s case pursuant to Rule 12(b)(6) because Plaintiff failed to exhaust the
established administrative process for federal recognition—namely, the Part 83 Process.
(See id. at 11 (citing Compl. ¶¶ 26, 29).) Moreover, according to Defendant,
“Plaintiff’s failure to exhaust the administrative acknowledgment process is also fatal to
Plaintiff’s claim that it is entitled to an election conducted by the Secretary of the
Interior” because recognition through the Part 83 Process is a mandatory prerequisite to

5

Citations to documents that the parties have filed refer to the page numbers that the Court’s electronic
filing system assigns.

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having the Secretary call a constitutional election under the IRA. (Def.’s Mem. at 35–
36.)
With respect to the sovereign immunity issue, Plaintiff argues that subsection
(d)(2) of the IRA specifically provides that actions to enforce provisions of the IRA
may be brought in federal court, and insofar as Count II of the complaint seeks an order
directing the Secretary to conduct an election pursuant to the IRA, Congress has clearly
waived the United States’ sovereign immunity with respect to this suit. (See Pl.’s Opp.
at 19–20.) Responding to Defendant’s argument that Plaintiff must nevertheless first
seek formal recognition through the Part 83 process, Plaintiff asserts that “there is no
requirement that a tribe need go through a Part 83 recognition process prior to applying
for reorganization under the IRA.” (Id. at 36.) Instead, Plaintiff contends that the
Mackinac Tribe was previously recognized by the federal government in a treaty
between the United States and various Michigan Indian groups (see id. at 28–31), and
thus, the Mackinac Tribe has already satisfied the IRA’s recognition requirement, so
there is no need for it to undertake the administrative process for recognition (see id. at
31).
This Court held a hearing on Defendant’s motion to dismiss Plaintiff’s complaint
on January 29, 2015.
II.

ANALYSIS
As explained above, the Mackinac Tribe has filed suit against the Secretary of

the Interior Department in her official capacity, asking this Court to (1) declare that it is
a federally recognized Indian tribe for the purpose of the IRA, and (2) order the
Secretary to conduct a constitutional election for the Mackinac Tribe as part of its

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reorganization effort, pursuant to 25 U.S.C. § 476(a). (See Compl. ¶¶ 38, 41–43, 45.)
The Interior Department insists that the Mackinac Tribe is not entitled to a
constitutional election or any other reorganization benefits under the IRA because it has
not been formally recognized through the agency’s Part 83 Process (see Def.’s Mem. at
10-12; Def.’s Reply at 6); moreover, as a threshold matter, the agency contends that this
Court cannot even address the merits of Plaintiff’s claims regarding its status and
entitlements because Plaintiff’s lawsuit is barred by sovereign immunity. 6 For the
reasons explained below, this Court finds that the Administrative Procedure Act’s
waiver of sovereign immunity applies to permit Plaintiff’s claims to proceed and
thereby thwarts Defendant’s motion to dismiss for lack of subject matter jurisdiction
under Rule 12(b)(1). However, because Plaintiff has conceded that it has not exhausted
its administrative remedies prior to filing this lawsuit, this Court concludes that
summary judgment must be granted in Defendant’s favor and this suit must be
dismissed.
A.

Applicable Legal Standards
1.

The Sovereign Immunity Doctrine

“It is an established principle of jurisprudence in all civilized nations that the
sovereign cannot be sued in its own courts, or in any other, without its consent and

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It is true that a claim brought against a federal official for acts performed within her official capacity
qualifies as a suit against the sovereign. See Dugan v. Rank, 372 U.S. 609, 620 (1963); Larson v.
Domestic & Foreign Commerce Corp., 337 U.S. 682, 693 (1949). There is an exception to this general
rule: a suit brought against an official for an action taken in her official capacity is not considered to
be a suit against the sovereign if the plaintiff maintains that the official has performed acts that are
unconstitutional or beyond statutory authority. See Pollack v. Hogan, 703 F.3d 117, 119-20 (D.C. Cir.
2012) (citing Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949) (explaining that
actions that transgressions of constitutional or statutory limitations are deemed individual and not
sovereign actions); see also Dugan v. Rank, 372 U.S. 609 (1963)). Plaintiff does not allege that this
exception applies here; thus, as Defendant asserts, the Mackinac Tribe’s complaint against the Interior
Secretary implicates the doctrine of sovereign immunity. C.f. Pollack v. Hogan, 703 F.3d 117, 119-20
(D.C. Cir. 2012).

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permission.” Beers v. State, 61 U.S. 527, 529 (1857). Consequently, the defense of
sovereign immunity, if applicable, divests a federal court of jurisdiction over a
plaintiff’s suit against the sovereign. See Steel Co. v. Citizens for a Better Env’t, 523
U.S. 83, 88–89 (1998); Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d
438, 449 (D.C. Cir. 1990); see also 14 Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 3655 (3d ed.) (“Although the United States district courts
have general subject matter jurisdiction over actions brought by federal agencies or
officers who are authorized to sue, there is no corresponding general statutory
jurisdiction to entertain suits against federal agencies and officers.”). Notably,
sovereign immunity is a privilege, not an imperative; therefore, Congress “may, if it
thinks proper, waive this privilege, and permit [the United States] to be made a
defendant in a suit by individuals, or by another State.” Beers v. State, 61 U.S. at 529
(emphasis added). A waiver of sovereign immunity is thus effectively a grant of
jurisdiction in cases in which the sovereign has been sued; the waiver gives courts the
power to hear a claim against the United States. See United States v. Mitchell, 463 U.S.
206, 212 (1983).
It is by now well established that “[a] waiver of sovereign immunity cannot be
implied but must be unequivocally expressed” in statutory text. Irwin v. Dep’t of
Veterans Affairs, 498 U.S. 89, 95 (1990) (internal quotation marks and citation
omitted). This means that “there can be no consent by implication or by use of
ambiguous language.” United States v. N.Y. Rayon Importing Co., 329 U.S. 654, 659
(1947). Nor can “[a] statute’s legislative history [] supply a waiver that does not appear
clearly in any statutory text.” Lane v. Pena, 518 U.S. 187, 192 (1996). “An Act of

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Congress is not unambiguous, and thus does not waive immunity, if it will bear any
‘plausible’ alternative interpretation.” Dep’t of Army v. Fed. Labor Relations Auth., 56
F.3d 273, 277 (D.C. Cir. 1995) (citing United States v. Nordic Vill. Inc., 503 U.S. 30,
34 (1992)); see also Webman v. Fed. Bureau of Prisons, 441 F.3d 1022, 1026 (D.C. Cir.
2006) (“Congress need not use magic words to waive sovereign immunity, but the
language it chooses must be unequivocal and unambiguous.”). Thus, any ambiguity as
to whether or not a certain statutory provision constitutes a waiver of sovereign
immunity must be construed “in favor of immunity.” United States v. Williams, 514
U.S. 527, 531 (1995). Additionally, even when there is an explicit waiver of sovereign
immunity, “the Government’s consent to be sued must be construed strictly in favor of
the sovereign, and not enlarged beyond what the language requires.” Nordic Vill., 503
U.S. at 34 (citations and internal quotation marks and alterations omitted). Put another
way, the government may have waived its sovereign immunity only under specified
circumstances, and any “limitations and conditions upon which the Government
consents to be sued must be strictly observed and exceptions thereto are not to be
implied.” Lehman v. Nakshian, 453 U.S. 156, 161 (1981).
A plaintiff who files an action against the United States must demonstrate that
there has been a waiver of sovereign immunity that is applicable to the claims plaintiff
has brought in order to satisfy the plaintiff’s burden of establishing that the court has
jurisdiction over the complaint. See Kelley v. Fed. Bureau of Investigation, No. CV 130825 (ABJ), 2014 WL 4523650, at *19 (D.D.C. Sept. 15, 2014). Accordingly, “a
plaintiff must overcome the defense of sovereign immunity in order to establish the
jurisdiction necessary to survive a Rule 12(b)(1) motion to dismiss.” Jackson v. Bush,

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448 F. Supp. 2d 198, 200 (D.D.C. 2006) (citing Tri-State Hosp. Supply Corp. v. United
States, 341 F.3d 571, 575 (D.C. Cir. 2003)).
“In ruling upon a motion to dismiss brought under Rule 12(b)(1), a court must
construe the allegations in the complaint in the light most favorable to the plaintiff.”
Scolaro v. Dist. Of Columbia Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C.
2000) (citation omitted). “But where necessary, the court may consider the complaint
supplemented by undisputed facts evidenced in the record, or the complaint
supplemented by undisputed facts plus the court’s resolution of disputed facts.”
Herbert v. Nat’l Acad. of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992) (citations
omitted). In this regard, the procedures applicable to a motion brought under 12(b)(1)
differ from those that apply to a Rule 12(b)(6) motion to dismiss, pursuant to which the
court “may consider only the facts alleged in the complaint, any documents either
attached to or incorporated in the complaint and matters of which [the court] may take
judicial notice.” E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624
(D.C. Cir. 1997). Thus, “[P]laintiff’s factual allegations in the complaint . . . will bear
closer scrutiny in resolving a 12(b)(1) motion” than in resolving a 12(b)(6) motion for
failure to state a claim, because “subject-matter jurisdiction focuses on the court’s
power to hear the plaintiff’s claim, [and] a Rule 12(b)(1) motion imposes on the court
an affirmative obligation to ensure that it is acting within the scope of its judicial
authority.” Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9,
13–14 (D.D.C. 2001) (citation omitted).
2.

The Exhaustion Doctrine

Another “long-settled rule of judicial administration[,]” Myers v. Bethlehem
Shipbuilding Corp., 303 U.S. 41, 50 (1938), is the principle that a court that has been
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asked to compel an agency to act “will stay its hand until the plaintiff has exhausted
whatever internal remedies the agency provides[.]” Glisson v. Forest Service, 55 F.3d
1325, 1326 (7th Cir. 1995); see also Reiter v. Cooper, 507 U.S. 258, 269 (1993)
(“Where relief is available from an administrative agency, the plaintiff is ordinarily
required to pursue that avenue of redress before proceeding to the courts; and until that
recourse is exhausted, suit is premature and must be dismissed.”). 7 Under this doctrine,
a plaintiff’s failure to pursue an administrative process that could remedy plaintiff’s
claims will preclude judicial review of agency action, so long as the purposes of
administrative exhaustion support such bar. Wilbur v. C.I.A., 355 F.3d 675, 677 (D.C.
Cir. 2004).
Exhaustion has three main purposes: “‘giving agencies the opportunity to correct
their own errors, affording parties and courts the benefits of agencies’ expertise, [and]
compiling a record adequate for judicial review[.]’” Avocados Plus Inc. v. Veneman,
370 F.3d 1243, 1247 (D.C. Cir. 2004) ((quoting Marine Mammal Conservancy, Inc. v.
Dep’t of Agric., 134 F.3d 409 (D.C. Cir. 1998)); see also Benoit v. U.S. Dep’t of Agric.,
577 F. Supp. 2d 12, 23 (D.D.C. 2008) (“Even when, as in this case, exhaustion is not a
jurisdictional prerequisite to judicial review, exhaustion of administrative remedies is
generally required so that the agency has an opportunity to exercise its discretion and

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“The word ‘exhaustion’ now describes two distinct legal concepts,” the first concept being “a
judicially created doctrine requiring parties who seek to challenge agency action to exhaust available
administrative remedies before bringing their case to court,” and the second concept being a statutory
requirement of “resort to the administrative process as a predicate to judicial review.” Avocados Plus
Inc. v. Veneman, 370 F.3d 1243, 1247 (D.C. Cir. 2004). Neither Plaintiff nor Defendant argues that
exhaustion is jurisdictional here, and the IRA does not contain an express exhaustion provision.
Therefore, this Court will only consider the prudential requirement. See Vermont Dep’t of Pub. Serv. v.
United States, 684 F.3d 149, 156 (D.C. Cir. 2012) (“We presume exhaustion is non-jurisdictional unless
Congress states in clear, unequivocal terms that the judiciary is barred from hearing an action until the
administrative agency has come to a decision.” (internal quotation marks and citation omitted)).

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expertise on the matter and to make a factual record to support its decision.” (internal
quotation marks, alterations, and citation omitted)). In other words, the prudential
exhaustion requirement ensures that plaintiffs do not file lawsuits against the United
States in federal court as a means of bypassing the regulatory framework that the
Executive has adopted to resolve disputes in the first instance. See James v. U.S. Dep’t
of Health & Human Servs., 824 F.2d 1132, 1137 (D.C. Cir. 1987) (“[W]here Congress
has delegated certain initial decisions to the Executive Branch, exhaustion of available
administrative remedies is generally a prerequisite to obtaining judicial relief for an
actual or threatened injury[.]”); Shinnecock Indian Nation v. Kempthorne, No. 06-CV5013 JFB ARL, 2008 WL 4455599, at *18 (E.D.N.Y. Sept. 30, 2008) (“[A]fter passage
of the regulations, it is abundantly clear that the judiciary should not intervene before
exhaustion of the administrative procedures has taken place.”).
a.

Motions To Dismiss A Complaint On Exhaustion Grounds

“[T]he failure to exhaust administrative remedies is an affirmative defense that
the defendant bears the burden of pleading and proving.” Howard v. Gutierrez, 474 F.
Supp. 2d 41, 49 (D.D.C. 2007). However, in evaluating a Rule 12(b)(6) motion, the
court “may consider only the facts alleged in the complaint, any documents either
attached to or incorporated in the complaint and matters of which [the court] may take
judicial notice.” St. Francis Xavier Parochial Sch., 117 F.3d at 624. Therefore, “a
defendant may raise an affirmative defense (such as exhaustion of administrative
remedies) under Rule 12(b)(6) only ‘when the facts that give rise to the defense are
clear from the face of the complaint.’” Shane v. United States, No. CIV.A.07577(RBW), 2008 WL 101739, at *6 (D.D.C. Jan. 9, 2008) (quoting Smith–Haynie v.
Dist. of Columbia, 155 F.3d 575, 578 (D.C. Cir. 1998)). This means, then, that a court
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can only dismiss a complaint under Rule 12(b)(6) on the grounds that a plaintiff has
failed to exhaust its administrative remedies if the complaint itself states that the
plaintiff has failed to exhaust its administrative remedies. See Jones v. Bock, 549 U.S.
199, 216 (2007).
b.

Conversion To A Motion For Summary Judgment

If the complaint does not contain an allegation that the plaintiff has failed to
exhaust available administrative remedies, “the appropriate procedural mechanism for
bringing a case to closure when there is no evidence in the record that the plaintiff
exhausted the administrative remedies available to him is a motion for summary
judgment under Federal Rule of Civil Procedure 56, not a motion to dismiss under Rule
12[.]” Shane, 2008 WL 101739, at *7. This is because reaching the exhaustion
question for the purpose of resolving a Rule 12(b)(6) motion to dismiss would require
the court “to refer to materials outside the pleadings[,]” which courts may do, but only
if it “also convert[s] the motion to dismiss into one for summary judgment[.]” Kim v.
United States, 632 F.3d 713, 719 (D.C. Cir. 2011).
“The decision to convert a motion to dismiss into a motion for summary
judgment . . . is committed to the sound discretion of the trial court.” Flynn v. TiedeZoeller, Inc., 412 F. Supp. 2d 46, 50 (D.D.C. 2006) (citation omitted). And “[i]n
exercising this discretion, the ‘reviewing court must assure itself that summary
judgment treatment would be fair to both parties.’” Bowe-Connor v. Shinseki, 845 F.
Supp. 2d 77, 85–86 (D.D.C. 2012) (quoting Tele-Commc’ns of Key West, Inc. v. United
States, 757 F.2d 1330, 1334 (D.C. Cir. 1985)). One means of providing the necessary
assurance would be to give the parties notice of the potential conversion and provide
them with an opportunity to present evidence in support of their respective positions.
16

See Taylor v. FDIC, 132 F.3d 753, 765 (D.C. Cir. 1997). “However, such notice need
not be given where the court is satisfied that the parties are not taken by surprise or
deprived of a reasonable opportunity to contest facts averred outside the pleadings and
the issues involved are discrete and dispositive.” Smith v. United States, 518 F. Supp.
2d 139, 154 (D.D.C. 2007) (internal quotation marks and citation omitted). Thus, even
if neither party has moved for summary judgment, where “both parties have cited
documents or provided evidence outside the pleadings with respect to the issue of
exhaustion,” a court may fairly convert a motion to dismiss for lack of exhaustion to a
motion for summary judgment under Rule 56. Cost v. Soc. Sec. Admin., 770 F. Supp.
2d 45, 49 (D.D.C. 2011); see also, e.g., Munsell v. Dep’t of Agric., 509 F.3d 572, 592
(D.C. Cir. 2007) (district court grant of 12(b)(6) motion to dismiss upheld as a grant of
summary judgment because exhaustion was raised in the Government’s motion to
dismiss and then fully addressed by the parties).
c.

Motions For Summary Judgment On Exhaustion Grounds

Once a court has converted a motion to dismiss into a motion for summary
judgment, summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and [thus] the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a); accord Talavera v. Shah, 638 F.3d 303, 308
(D.C. Cir. 2011). “A fact is material if it ‘might affect the outcome of the suit under
the governing law,’ and a dispute about a material fact is genuine ‘if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.’” Steele v.
Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)). While the Court must view this evidence in the light most
favorable to the non-moving party and draw all reasonable inferences in that party’s
17

favor, see, e.g., Grosdidier v. Broad. Bd. of Governors, Chairman, 709 F.3d 19, 23
(D.C. Cir. 2013), the non-moving party must show more than “[t]he mere existence of a
scintilla of evidence in support of” his or her position—“there must be evidence on
which the jury could reasonably find for the [non-moving party].” Anderson, 477 U.S.
at 252. Moreover, the non-moving party “may not rest upon mere allegation or denials
of his pleading but must present affirmative evidence showing a genuine issue for trial.”
Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987) (internal quotation
marks and citation omitted).
B.

The United States Has Waived Its Immunity To Plaintiff’s Lawsuit
The applicable legal standards require this Court to determine at the outset

whether the United States has waived the defense of sovereign immunity in this context,
thereby consenting to suit, and if so, whether the Mackinac Tribe’s claims fit within the
scope of any such waiver. See United States v. White Mountain Apache Tribe, 537 U.S.
465, 472 (2003). In this regard, the parties have trained their focus on the IRA (see,
e.g., Pl.’s Opp. at 19 (asserting that the required express waiver of sovereign immunity
appears in that statute); Def.’s Reply at 21 (arguing that the IRA waives sovereign
immunity only for federally recognized tribes), but this Court finds that the IRA does
not itself contain language that amounts to a waiver of sovereign immunity. Instead,
Plaintiff’s claims fall within the scope of the express waiver of sovereign immunity in
the Administrative Procedure Act.
1.

The Indian Reorganization Act Does Not Contain An Express
Waiver Of Sovereign Immunity

Plaintiff points to section 476(d)(2) of the IRA—which specifically states that
“[a]ctions to enforce the provisions of this section may be brought in the appropriate

18

Federal district court[,]” 25 U.S.C. § 476(d)(2)—and based on that statutory verbiage,
argues that “[t]here is no serious question that Congress has waived sovereign immunity
to allow tribes to bring suit to compel the Secretary to hold an election under the IRA.”
(Pl.’s Opp. at 20.) Plaintiff is correct that subsection (d)(2) of section 476 authorizes
Indian tribes to bring lawsuits “to enforce the provisions” of the IRA in federal court;
however, this language alone does not a sovereign immunity waiver make. Indeed, as
this Court reads subsection (d)(2), Congress is speaking to the power of a federal court
to consider cases of this nature (actions to enforce the provisions of the IRA), and does
not mention who may properly be named as a defendant in any such suit, much less
expressly permit such enforcement actions to proceed against the United States.
Consequently, subsection (d)(2) is, at most, ambiguous as far as the defense of
sovereign immunity is concerned, and that section therefore fails to qualify as the type
of unequivocal and explicit waiver of sovereign immunity that Plaintiff needs in order
to maintain this action. See Nordic Vill., 503 U.S. at 33 (“Waivers of the Government’s
sovereign immunity, to be effective, must be unequivocally expressed.” (internal
quotation marks and citation omitted)).
Significantly, courts have long held that the mere fact that Congress expressly
permits a certain claim to be brought in federal court does not suffice to show that
Congress has abrogated the defense of sovereign immunity to that claim. See Munaco
v. United States, 522 F.3d 651, 653 n.3 (6th Cir. 2008) (“[J]urisdictional statutes . . . do
not operate as waivers of sovereign immunity.” (citation omitted)); see also, e.g., Swan
v. Clinton, 100 F.3d 973, 981 (D.C. Cir. 1996) (holding that 28 U.S.C. § 1331, which
states that “district courts shall have original jurisdiction of all civil actions arising

19

under the Constitution, laws, or treaties of the United States[,]” does not constitute a
waiver of sovereign immunity); Washington Legal Found. v. U.S. Sentencing Comm’n,
89 F.3d 897, 901 (D.C. Cir. 1996) (holding that 28 U.S.C. § 1361, which provides that
“district courts shall have original jurisdiction . . . to compel an officer or employee of
the United States . . . to perform a duty owed to the plaintiff[,]” does not constitute a
waiver of sovereign immunity). Instead, courts considering whether a statutory grant of
jurisdiction qualifies as a waiver of sovereign immunity must look for a clear and
unequivocal statement that the United States—or its agencies or officers—can be sued
as a defendant in the permissible action.
For example, the Administrative Procedure Act (“APA”) specifically states that
certain actions brought against the United States “shall not be dismissed nor relief
therein be denied on the ground that it is against the United States” and that “the United
States may be named as a defendant in any such action.” 5 U.S.C. § 702; see Match-EBe-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2204
(2012) (noting that this section of the APA is a waiver of sovereign immunity).
Similarly, the Federal Tort Claims Act (“FTCA”) proclaims that “[t]he United States
shall be liable . . . in the same manner and to the same extent as a private individual
under like circumstances[.]” 28 U.S.C. § 2674; see Dolan v. U.S. Postal Serv., 546 U.S.
481, 485 (2006) (noting this section of the FTCA supplies a waiver of sovereign
immunity). The Tucker Act, too, expressly permits “any claim against the United
States founded either upon the Constitution, or any Act of Congress or any regulation of
an executive department, or upon any express or implied contract with the United
States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28

20

U.S.C. § 1491(a)(1); see Mitchell, 463 U.S. at 215 (1983) (noting that this section of the
Tucker Act provides a waiver of sovereign immunity).
By contrast, a statute that says nothing about whether the United States can be
sued under its provisions and instead generally authorizes the filing in federal court of
an action to enforce provisions of the statute merely connotes a grant of federal
jurisdiction that does not rise to the level of an express sovereign immunity waiver.
See, e.g., Al-Haramain Islamic Found., Inc. v. Obama, 705 F.3d 845, 850–55 (9th Cir.
2012) (finding no waiver of sovereign immunity under the civil liability provision of
Foreign Intelligence Surveillance Act, where that provision expressly permitted suit
against “any person who committed such violation” and the statutory definition of
“person” did not include the United States); In re Al Fayed, 91 F. Supp. 2d 137 (D.D.C.
2000) (similar). In Geronimo v. Obama, 725 F. Supp. 2d 182 (D.D.C. 2010), the
district court considered statutory language in the Native American Graves Protection
and Repatriation Act (“NAGPRA”) that is substantially similar to the provision Plaintiff
relies on here, and rejected the plaintiff’s contention that a NAGPRA provision
authorizing “an action in district court to seek ‘such orders as may be necessary to
enforce the provisions of th[e] Act’” constituted a waiver of sovereign immunity,
concluding instead that this language merely “provides for a private right of action[.]”
Id. at 185; see also id. (“NAGPRA does not provide a waiver of sovereign immunity.”).
So it is here. Again, subsection (d)(2) of the IRA says only that “[a]ctions to
enforce the provisions of this section may be brought in the appropriate Federal district
court.” 25 U.S.C. § 476(d)(2). Unlike the language that Congress used in the APA, the
FTCA, or the Tucker Act, subsection (d)(2) does not state that the United States can be

21

made a defendant in any such action; in fact, subsection (d)(2) makes no mention of the
United States at all. And without such a clear statement abrogating the sovereign
immunity of the United States, this Court cannot conclude that a waiver of sovereign
immunity is “unequivocally expressed in the statutory text” of subsection (d)(2). Lane,
518 U.S. at 192; see also Brown v. Sec’y of Army, 78 F.3d 645, 650 (D.C. Cir. 1996)
(“[W]e must presume that a Congress that intends to waive sovereign immunity is
aware of the principles that will govern our reading of the waiver. Therefore, having
said that we would take the legislature strictly at its word when it specifies whether and
to what extent it waives sovereign immunity, we are bound to infer that it intended no
more than it said.”).
2.

The Administrative Procedure Act Waives Defendant’s Sovereign
Immunity And Applies To Plaintiff’s Action

The absence of an express sovereign immunity waiver in subsection (d)(2) of the
IRA means that the Mackinac Tribe “must look beyond the jurisdictional statute for a
waiver of sovereign immunity with respect to [its] claim.” United States v. Mitchell,
445 U.S. 535, 538 (1980). Plaintiff has not done any such thing in its briefing and
argument, but Defendant briefly suggests—and then quickly dismisses—the possibility
that the APA might supply the necessary sovereign immunity waiver. (See Def.’s Mem.
at 22 n.5 (noting with respect to 5 U.S.C. §§ 701–06 that “[t]he APA provides a limited
waiver of the United States’ sovereign immunity[,]” but asserting that Plaintiff “is
precluded from relying on” this waiver due to its failure to exhaust administrative
remedies). The APA expressly and unequivocally provides that, where a plaintiff
alleges that “an agency or an officer or employee thereof acted or failed to act in an
official capacity or under color of legal authority,” the case “shall not be dismissed nor

22

relief therein be denied on the ground that it is against the United States[.]” 5 U.S.C.
§ 702. 8 And this Court has carefully considered whether the APA’s unequivocal
sovereign immunity waiver is available to the Mackinac Tribe with respect to the claims
it seeks to advance in this instant action. For the reasons that follow, the Court has
concluded that the APA’s waiver applies to the Mackinac Tribe’s action for at least two
reasons.
First, because the APA’s waiver of sovereign immunity is available to all who
satisfy the applicable statutory criteria, even when a plaintiff has not brought its claim
against the United States under, or pursuant to, the APA. See Z Street, Inc. v. Koskinen,
No. 12-CV-0401 (KBJ), 2014 WL 2195492, at *10 (D.D.C., May 27, 2014)(“[A] suit
need not have been brought pursuant to the APA in order to receive the benefit of that
statute’s sovereign immunity waiver; indeed, the ‘APA’s waiver of sovereign immunity
applies to any suit whether under the APA or not.’” (quoting Chamber of Commerce v.
Reich, 74 F.3d 1322, 1328 (D.C. Cir. 1996)) (emphasis omitted)). By its own terms, the
waiver applies (1) when a plaintiff claims that “an agency or an officer or employee

8

The relevant statutory provision states in full:
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. An action in a court of the United States seeking relief other
than money damages and stating a claim that an agency or an officer or employee
thereof acted or failed to act in an official capacity or under color of legal authority
shall not be dismissed nor relief therein be denied on the ground that it is against the
United States or that the United States is an indispensable party. The United States may
be named as a defendant in any such action, and a judgment or decree may be entered
against the United States: Provided, That any mandatory or injunctive decree shall
specify the Federal officer or officers (by name or by title), and their successors in
office, personally responsible for compliance. Nothing herein (1) affects other
limitations on judicial review or the power or duty of the court to dismiss any action or
deny relief on any other appropriate legal or equitable ground; or (2) confers authority
to grant relief if any other statute that grants consent to suit expressly or impliedly
forbids the relief which is sought.

5 U.S.C. § 702.

23

thereof acted or failed to act in an official capacity or under color of legal authority,”
and (2) when the plaintiff “seek[s] relief other than money damages.” 5 U.S.C. § 702.
Such is the case here, given that in the instant complaint, Plaintiff Mackinac Tribe
alleges that the Secretary failed to fulfill her statutory duty to call a constitutional
election for Plaintiff when requested, and the complaint requests a judgment ordering
the Secretary to conduct that election. (See Compl. ¶¶ 40–45.)
Second, although Defendant argues that Plaintiff needs to fulfill an additional
requirement in order to be able to rely on the APA’s sovereign immunity waiver—
namely, that the agency action that Plaintiff seeks to challenge must be a “final” agency
action (see Def.’s Mem. at 22 n.5 (“The APA provides a limited waiver of the United
States’ sovereign immunity by providing ‘a right to judicial review of all ‘final agency
action for which there is no other adequate remedy in a court.’” (quoting Bennett v.
Spear, 520 U.S. 154, 175 (1997), 9 the D.C. Circuit rejected this very argument in
Trudeau v. Federal Trade Comm’n, 456 F.3d 178 (D.C. Cir. 2006). See id. at 187
(holding that APA § 702’s waiver of sovereign immunity “applies regardless of whether
[the challenged agency action] constitutes ‘final agency action’”).
To the extent that Plaintiff Mackinac Tribe is here seeking to proceed under the
IRA, it is sufficient that its complaint alleges that the agency has failed to act where the
law provides it must, and Plaintiff need not identify a final agency action in order to
avail itself of APA’s sovereign immunity waiver, despite Defendant’s assertions to the

9

In referencing “final agency action,” Defendant refers to Section 704 of the APA, which states that
“[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 judicial review.” 5 U.S.C. § 704. Thus, in Defendant’s view,
“[p]laintiff is precluded from relying on the only potentially available waiver of sovereign immunity
because it has not exhausted the administrative remedies that are necessary to consummate Interior’s
decision-making process.” (Def.’s Mem. at 22 n.5.)

24

contrary. The Court is mindful, however, that “other limitations on judicial review or
the power or duty of the court to dismiss any action or deny any relief on any other
appropriate legal or equitable ground” may nevertheless preclude this action. 5 U.S.C.
§ 702. The Court therefore must proceed to consider Defendant’s alternative assertion
that the complaint must be dismissed because Plaintiff has not exhausted its
administrative remedies. (See Def.’s Mem. at 30 (“Plaintiff’s complaint should be
dismissed because Plaintiff has not exhausted its administrative remedies by obtaining a
final determination regarding its recognition.”).)
C.

Plaintiff Needed To Exhaust Its Administrative Remedies Prior To
Bringing This Lawsuit And Has Indisputably Failed To Do So
The administrative path to receiving the recognition and reorganization

assistance that Plaintiff Mackinac Tribe asks this Court to order is clear: the Interior
Department requires Indian groups to apply for these benefits pursuant to the Part 83
Process. See 25 C.F.R. pt. 83, Procedures for Establishing That an American Indian
Group Exists as an Indian Tribe; see also 25 C.F.R. pt. 81, Tribal Reorganization
Under a Federal Statute. Plaintiffs do not dispute that the Part 83 Process is the
mechanism by which Secretary now recognizes tribes and consequently determines
whether Indian groups are eligible for federal benefits such as reorganization, yet
Plaintiff concedes that it has not pursued those regulatory procedures. (See Hr’g Tr. at
49:8). Instead, Plaintiff appears to assert that it has exhausted its administrative
remedies because the complaint specifies that the tribe approached the Secretary to
request an election pursuant to the IRA and “the Secretary did nothing.” (See Pl.’s
Opp. at 35 (noting that “[t]he Secretary didn’t even make a formal decision that the
tribe was ineligible to reorganize under the statute, nor informally respond to the

25

tribe”); but see Hr’g Tr. At 36:2–4 (noting that “when we asked the status of that
petition, the department sent a letter saying that the group is inactive now primarily
because the guy [who sent the letter] died”).)
To the extent that Plaintiff maintains that its election request was sufficient
exhaustion and that it need not have undertaken the Part 83 Process under the
circumstances presented here (i.e., because it believes that the tribe already has been
federally recognized pursuant to a treaty or otherwise), no less an authority than the
D.C. Circuit has strongly suggested otherwise. In James v. U.S. Dep’t of Health &
Human Servs., 824 F.2d 1132 (D.C. Cir. 1987), a group of Gay Head Indians sued for a
declaratory judgment that the Interior Department’s failure to include the Gay Heads on
its list of federally recognized Indian tribes was contrary to law, as well as an order
directing the Secretary to place the Gay Heads on the list of recognized tribes. See id.
at 1135. The Secretary moved to dismiss the complaint on the ground that the Gay
Heads had not pursued the Part 83 Process and thus had failed to exhaust their
administrative remedies for receiving the federal recognition the lawsuit requested. See
id. Much like the Plaintiffs before this Court, the Gay Heads argued that “it would be
redundant for them to exhaust administrative channels in an attempt to obtain federal
recognition” because the Gay Heads had already been recognized in a report that a
Presidential Commission had prepared in 1822. See id. at 1133, 1136–37. (See also
Pl.’s Opp. at 28–29.) The D.C. Circuit disagreed, affirming the district court’s
dismissal of the Gay Heads’ complaint, because the Gay Heads had not exhausted their
administrative remedies by pursuing the administrative recognition process. See id. at
1138. In so holding, the James Court explained that “requiring exhaustion of the

26

Department of the Interior’s procedures for tribal recognition, before permitting judicial
involvement” serves the purposes of the exhaustion doctrine in that “requiring
exhaustion allows the Department of the Interior the opportunity to apply its developed
expertise in the area of tribal recognition[,]” and “the factual record developed at the
administrative level would most assuredly aid in judicial review should the parties be
unsuccessful in resolving the matter[].” Id; see also Avocados Plus, 370 F.3d at 1247
(noting that the exhaustion doctrine serves the functions of “affording parties and courts
the benefits of agencies’ expertise, [and] compiling a record adequate for judicial
review.” (internal quotation marks and citation omitted).
The Circuit’s reasoning in James clearly applies to the circumstances presented
in this case. Although Plaintiff Mackinac Tribe may have approached the Secretary to
ask for an election pursuant to the IRA, and thereby invoked the administrative process
to some extent, it did not ask the agency the relevant question for the purpose of the
administrative process—i.e., whether the Mackinac Tribe satisfies the Part 83
requirements for federal recognition—which according to the agency, is a precursor to
any request that the Secretary call an election for reorganization of the tribe. 10 This
Court concludes that it is precisely because there is no genuine dispute that the
Mackinac Tribe failed to seek an agency decision regarding recognition before it filed
its lawsuit in federal court that summary judgment must be entered for Defendant.
Indeed, the Interior Department’s unique expertise in Indian affairs makes the agency

10
This Court need not, and does not, reach the merits of the agency’s contention that recognition
through the Part 83 process is the only vehicle by which an Indian group is entitled to the benefits of
reorganization under the IRA. (See Def.’s Mot. at 25–34.) Instead, the Court here holds only that a
group such as the Mackinac Tribe must first proceed through the administrative process for formal
recognition before it can bring a lawsuit that requests recognition and reorganization by court order.
See infra note 11.

27

better suited than the courts to determine whether or not Plaintiff should be federally
recognized as an Indian tribe in the first instance, and the factual record that would be
developed during the agency’s review of plaintiff’s claim would be useful to the court
in reviewing of the agency’s decision, see James, 824 F.2d at 113. Therefore, “the
policies underlying the exhaustion doctrine dictate” this result. United Tribe of
Shawnee Indians v. United States, 253 F.3d 543, 550 (10th Cir. 2001); see also Sandy
Lake Band, 2011 WL 2601840, at * 4 (noting that “requiring an entity seeking an IRA
election to first request federal acknowledgment” ensures that the evidence the tribe
offers in support of its claim “will be presented to the appropriate agency with the
requisite expertise and established regulatory process.”). 11
III.

CONCLUSION
Although sovereign immunity poses no bar to the instant action, the Mackinac

Tribe has admittedly failed to request recognition through the Department of Interior’s
Part 83 Process. Exhaustion of existing administrative remedies must be accomplished
prior to filing a suit of this nature. See James, 824 F.2d at 1138. Consequently, as set

11

It bears repeating that this Court is not suggesting that the agency necessarily is correct when it
argues that the sole means of recognition that is cognizable under the IRA is the recognition that results
from the Part 83 Process. See Federally Recognized Indian Tribe List Act of 1994, Pub. L. No. 103454, 108 Stat. 4791, Section 103 (1994) (codified at 25 U.S.C. § 479a) (“Indian tribes presently may be
recognized by Act of Congress; by the administrative procedures set forth in part 83 of the Code of
Federal Regulations denominated ‘Procedures for Establishing that an American Indian Group Exists as
an Indian Tribe;’ or by a decision of a United States court.”). Instead, the Court merely holds that
before a plaintiff may file a lawsuit seeking to compel the Secretary to call a constitutional election
pursuant to the IRA, the plaintiff must first pursue the Secretary’s recognition process. If the
recognition process results in a decision adverse to Plaintiff’s position, Plaintiff may challenge the
Secretary’s decision—as well as the method by which she reached that decision—in federal court, see 5
U.S.C. § 706 (a court shall “compel agency action unlawfully withheld” and “hold unlawful and set
aside agency action, findings and conclusions” that the court finds to be “arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law”), and in such a case, the administrative record
will undoubtedly aid the Court’s review of the agency’s decision. Thus, by requiring “exhaustion” this
Court refers only to Plaintiff’s obligation to seek recognition through the Part 83 Process, not to any
obligation to receive such recognition.

28

forth in the accompanying order, Defendant’s Motion for Summary Judgment (as this
Court has now construed its Motion to Dismiss) will be GRANTED.

Ketanji Brown Jackson

DATE: March 31, 2015

KETANJI BROWN JACKSON
United States District Judge

29