Sandy Lake Band of Mississippi Chippewa v. United States of America et al
Filing
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MEMORANDUM OPINION AND ORDER. 1. Plaintiff's Motion for Partial Summary Judgment (Doc. No. 9 ) is DENIED. 2. Defendants' Motion to Dismiss, or, in the Alternative, Motion for Summary Judgment (Doc. No. 6 ) is GRANTED. 3. Plaintiff's Complaint (Doc. No. 1 ) is DISMISSED WITH PREJUDICE. (Written Opinion). Signed by Judge Donovan W. Frank on 5/4/2012. (BJS)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Sandy Lake Band of Mississippi
Chippewa,
Civil No. 11-2786 (DWF/LIB)
Plaintiff,
v.
MEMORANDUM
OPINION AND ORDER
United States of America; Ken Salazar, as
Secretary of the Interior; Larry Echo Hawk,
as the Assistant Secretary for Indian Affairs;
Jodi Gillette, as Acting Deputy Assistant
Secretary for Policy and Economic
Development, Indian Affairs; and Diane
Rosen, as Regional Director, Midwest
Regional Office, Bureau of Indian Affairs,
Defendants.
_______________________________________________________________________
Lester J. Marston, Esq., Rapport and Marston; and Suzanne W. Kvas, Esq., Lehmann &
Lutter, PA, counsel for Plaintiff.
Bahram Samie, Assistant United States Attorney, United States Attorney’s Office; and
Kenneth Rooney, Esq., United States Department of Justice, Environment and Natural
Resources Division; Marcia M. Kimball, United States Department of the Interior,
counsel for Defendants.
_______________________________________________________________________
INTRODUCTION
This matter is before the Court on a Motion for Partial Summary Judgment
brought by Plaintiff Sandy Lake Band of Mississippi Chippewa (“Plaintiff” or the
“Sandy Lake Band”) (Doc. No. 9); and a Motion to Dismiss, or, in the Alternative,
Motion for Summary Judgment brought by Defendants United States of America; Ken
Salazar, Secretary of the Interior (“Secretary”); Larry Echo Hawk, Assistant Secretary for
Indian Affairs; Jodi Gillette, Acting Deputy Assistant Secretary for Policy and Economic
Development, Indian Affairs; and Diane Rosen, Regional Director, Midwest Regional
Office, Bureau of Indian Affairs (collectively, “Defendants”) (Doc. No. 6). For the
reasons set forth below, the Court denies Plaintiff’s motion and grants Defendants’
motion.
BACKGROUND
Plaintiff brought a previous lawsuit against the United States and several
employees of the Department of Interior, asserting claims for Violation of the Federally
Recognized List Act of 1994 (“List Act”); Violation of the Indian Reorganization Act, 25
U.S.C. § 461, et seq. (“IRA”); Violation of the Administrative Procedure Act (“APA”);
Violation of the Fifth Amendment; and Breach of Trust, List Act, and IRA. The Court
dismissed Plaintiff’s claims, without prejudice, for failing to exhaust its sole
administrative remedy—the Federal acknowledgement process. See Sandy Lake Band of
Mississippi Chippewa v. United States, Civ. No. 10-3801, 2011 WL 2601840, at *4 (D.
Minn. July 1, 2011) (“Sandy Lake I”).
Plaintiff then brought the present action, alleging the following claims: Counts
One and Two—Violation of the IRA; Counts Three, Four, and Five—Violation of the
APA; Count Six—Breach of Trust. (Doc. No. 1, Compl.) In the present action, Plaintiff
challenges the Secretary’s decision that Plaintiff was not eligible for an election to
organize a tribal government pursuant to Section 476 of the IRA (an “IRA election” or
“Secretarial election”). Many of the relevant facts of this case were set forth in the
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Court’s prior order dismissing Plaintiff’s complaint in Sandy Lake I. See generally Sandy
Lake I, Civ. No. 10-3801, 2011 WL 2601840. The Court summarizes and supplements
the facts below.
Plaintiff describes itself as “an Indian tribe that was recognized as being under the
jurisdiction of the United States on June 18, 1934.” (Doc. No. 1, Compl. ¶ 4.)
Defendants are the United States of America and certain officers or employees of the
United States Department of the Interior with direct or delegated responsibilities to carry
out government-to-government relationships with Indian tribes and provisions of the
IRA. (Compl. ¶ 5.)
Congress passed the IRA in 1934. The purpose of the IRA was, among other
things, to facilitate economic development of Indian reservations and to encourage
Indians to organize tribal governments. (Compl. ¶ 7.) For example, Section 476 of the
IRA authorizes tribes to organize a tribal government by adopting a written constitution,
which becomes effective when ratified by a majority vote of the adult members of a tribe
at a special election called by the Secretary. See 25 U.S.C. § 476.
Congress has restricted the eligibility for benefits under the IRA to persons who
meet the statutory definition of “Indian.” Eligible Indians can request a Secretarial
election to adopt a constitution. 25 U.S.C. § 476. Section 479 of the IRA provides, in
part:
The term “Indian” as used in this Act shall include all persons of Indian
descent who are members of any recognized Indian tribe now under Federal
jurisdiction, and all persons who are descendants of such members who
were, on June 1, 1934, residing within the present boundaries of any Indian
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reservation, and shall further include all other persons of one-half or more
Indian blood.
25 U.S.C. § 479. Congress delegated to the Secretary the authority to promulgate
rules and regulations governing Secretarial elections:
( a) Adoption; effective date
Any Indian tribe shall have the right to organize for its common welfare,
and may adopt an appropriate constitution and bylaws, and any
amendments thereto, which shall become effective when—
(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 . . .
25 U.S.C. § 476(a)(1) (emphasis added). Those regulations are codified in Title
25 of the Code of Federal Regulations, Part 81.
In 1934, the Secretary of the Interior conducted elections on the Indian
Reservations in Minnesota for the purpose of allowing the tribes and Indians residing on
the reservations to vote on whether they wanted the provisions of the IRA to apply to
them and their respective reservations. (Doc. No. 12, Skinaway Decl. ¶ 9.) The
Secretary held an election under the provisions of the IRA to allow various tribes and
bands in Minnesota to organize a tribe called the Minnesota Chippewa Tribe. (Id. ¶ 10.)
A polling place was maintained at Sandy Lake to allow members of the Sandy Lake Band
to vote on the proposed constitution, but no members of the Sandy Lake Band cast a
ballot. (Id.) In 1936, a majority of the tribes and bands of Chippewa Indians residing on
various Indian reservations in Minnesota organized a single tribal government under a
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written constitution, the Constitution of the Minnesota Chippewa Tribe (“MCT
Constitution”). (Compl. ¶ 12; Skinaway Decl. ¶ 11.)
As noted in Sandy Lake I, the MCT Constitution states that it “shall apply to the
White Earth, Leech Lake, Fond du Lac, Bois Fort (Nett Lake), and Grand Portage
Reservations, and the nonremoval Mille Lacs Band of Chippewa Indians.”
(Sandy Lake I, 2011 WL 2601840, at *1 (citing Civ. No. 10-3801, Doc. No. 16, Ex. 2 at
1).) Moreover, on February 16, 1939, the Chippewa Indians of the Mille Lacs
Reservation ratified and accepted the Charter of Organization of the Mille Lacs Band of
Chippewa Indians (“MLB Charter”). (Id. (citing Civ. No. 10-3801, Doc. No. 16, Ex. 3 at
7).) The MLB Charter defines membership in the Mille Lacs Band of Chippewa Indians
as consisting of
[a]ll Chippewa Indians permanently residing on the Mille Lacs Reservation
and at, or near, the Villages of . . . Sandy Lake, Minnesota, on the adoption
of this Charter, and their descendants, whose names appear on the approved
roll of the Chippewa Tribe as determined by Sections 2 and 3 of the
Constitution of the Minnesota Chippewa Tribe.
(Id. (citing Civ. No. 10-3801, Doc. No. 16, Ex. 3 at 2) (emphasis added).)
On May 29, 1980, in response to a request from the Bureau of Indian Affairs
(“BIA”) for an opinion regarding the jurisdictional status of the Sandy Lake Reservation,
a Field Solicitor for the United States Department of the Interior stated that “the
Chippewas residing at Sandy Lake have been considered Chippewa of the Mississippi
and part of the group known as the Mille Lacs Band” and that “the Mille Lacs Band is the
political successor of the historic Sandy Lake Band.” (Civ. No. 10-3801, Doc. No. 1,
Compl. (“Sandy Lake I Compl.”) ¶ 43, Ex. 23 at 2.) Further, in June 1998, the Chief of
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the Division of Tribal Government Services issued a letter to members of the Sandy Lake
Band providing instruction regarding the federal acknowledgment process, and stated that
“[i]n order to officially place your group on our priority register, we will need a formal
expression from the group’s governing body which states specifically that the group is
petitioning for Federal acknowledgment and that the action is authorized by the group’s
governing body.” (Civ. No. 10-3801, Doc. No. 16, Ex. 1 ¶ 25.) Additional letters were
sent to members of the Sandy Lake Band between 1991 and 2006 addressing the federal
acknowledgment procedure. (Id. ¶¶ 26, 28, 30-40.)
Sandy Lake I was initiated after Plaintiff requested reorganization (or a Secretarial
election) under Section 476 of the IRA. (Compl. ¶ 13.) On or about July 27, 2007, the
Superintendent of the Minnesota Agency of the BIA sent a letter in response enclosing an
August 1, 2006 letter from the Associate Solicitor of Indian Affairs, which stated that “it
is clear that the Sandy Lake Band would not as a matter of law be eligible for
acknowledgment under the Department’s existing regulations” but “[s]ince the Sandy
Lake Band has not petitioned the Department for acknowledgment, this letter can not be
construed as a determination under [25 C.F.R. Part 83].” (Compl. ¶ 14, Ex. B.) The
Sandy Lake Band appealed the July 27, 2007 decision. (Id. ¶ 15.) In an August 28, 2007
letter from the Midwest Regional Director for the BIA, the appeal was denied and
Plaintiff was advised that it was not eligible to request a Secretarial election until there is
a final determination through the federal recognition process or legislative recognition of
the group. (Compl. ¶ 15, Ex. C.)
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After appealing the decision unsuccessfully, Plaintiff filed suit in Sandy Lake I
challenging the Secretary’s denial. The United States moved to dismiss the Sandy Lake I
complaint on the grounds that the Sandy Lake Band was not eligible to request a
Secretarial election because it was not federally recognized and because this Court lacked
subject matter jurisdiction due to the Sandy Lake Band’s failure to exhaust its
administrative remedies, namely its failure to invoke the federal acknowledgment
process. In opposition to the motion to dismiss, the Sandy Lake Band argued that the
regulatory scheme governing Secretarial elections should be overturned because
25 C.F.R. § 81.1(w) contradicts the definition of Indian tribe in Section 479 of the IRA,
and filed an amended complaint requesting that the Court declare the regulatory scheme
null and void.
The Court dismissed Sandy Lake I, holding that the Sandy Lake Band failed to
exhaust its administrative remedies and the Court lacked subject matter jurisdiction over
the Sandy Lake Band’s claims that relate to the requested IRA election. (Sandy Lake I,
2011 WL 2601840, at *5.) The Court explained:
The Court concludes that the Sandy Lake Band has failed to exhaust its
administrative remedies. The Court respectfully rejects the Band’s
contention that 25 C.F.R. § 81.1(w) contradicts the definition of Indian
tribe in 25 U.S.C. § 479. Rather, by requiring an entity seeking an IRA
election to first request federal acknowledgment, the regulations ensure that
the evidence the Sandy Lake Band offers in support of its claim that it
qualifies as an Indian tribe under Section 479 will be presented to the
appropriate agency with the requisite expertise and established regulatory
process. The Defendants have repeatedly and consistently informed the
Sandy Lake Band that it must file a petition for federal acknowledgment as
the first step in the Band’s effort to seek an IRA election, but the Band has
failed to do so. Accordingly, the Band has failed to exhaust its
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administrative remedies and this Court lacks subject matter jurisdiction
over the Band’s claims that relate to the requested IRA election.
...
The Court also respectfully rejects the Sandy Lake Band’s argument that
25 C.F.R. § 81.1(w) contradicts 25 U.S.C. § 479 as interpreted by the
Supreme Court in Carcieri v. Salazar, 555 U.S. 379 (2009). Carcieri held
that the term “now under Federal jurisdiction” refers to Indian tribes under
Federal jurisdiction in 1934. The effect of this holding is that the Secretary
may not expand the definition of Indian tribes eligible for an IRA election
to include those not under Federal jurisdiction in 1934. It does not follow
from this result that requiring an entity to first seek federal
acknowledgment before requesting an IRA election exceeds the authority
granted to the Secretary.
(Sandy Lake I, 2011 WL 2601840, at *4 & n.3.) The Sandy Lake Band did not appeal.
On September 28, 2011, the Sandy Lake Band brought the present action. Defendants
now move to dismiss, or in the alternative, for summary judgment. The Sandy Lake
Band moves for partial summary judgment. The Court considers the pending motions
below.
DISCUSSION
I.
Motion to Dismiss and Summary Judgment Standards
In deciding a motion to dismiss pursuant to Rule 12(b)(6), a court assumes all
facts in the complaint to be true and construes all reasonable inferences from those facts
in the light most favorable to the complainant. Morton v. Becker, 793 F.2d 185, 187 (8th
Cir. 1986). In doing so, however, a court need not accept as true wholly conclusory
allegations, Hanten v. Sch. Dist. of Riverview Gardens, 183 F.3d 799, 805 (8th Cir.
1999), or legal conclusions drawn by the pleader from the facts alleged. Westcott v. City
of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990). A court may consider the complaint,
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matters of public record, orders, materials embraced by the complaint, and exhibits
attached to the complaint in deciding a motion to dismiss under Rule 12(b)(6). Porous
Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999).
To survive a motion to dismiss, a complaint must contain “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
545 (2007). Although a complaint need not contain “detailed factual allegations,” it must
contain facts with enough specificity “to raise a right to relief above the speculative
level.” Id. at 555. As the United States Supreme Court recently reiterated, “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements,”
will not pass muster under Twombly. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)
(citing Twombly, 550 U.S. at 555). In sum, this standard “calls for enough fact[s] to raise
a reasonable expectation that discovery will reveal evidence of [the claim].” Twombly,
550 U.S. at 556.
Summary judgment is proper if there are no disputed issues of material fact and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The
Court must view the evidence and the inferences that may be reasonably drawn from the
evidence in the light most favorable to the nonmoving party. Enter. Bank v. Magna Bank
of Mo., 92 F.3d 743, 747 (8th Cir. 1996). However, as the Supreme Court has stated,
“[s]ummary judgment procedure is properly regarded not as a disfavored procedural
shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed
‘to secure the just, speedy, and inexpensive determination of every action.’” Celotex
Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1).
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The moving party bears the burden of showing that there is no genuine issue of
material fact and that it is entitled to judgment as a matter of law. Enter. Bank, 92 F.3d at
747. The nonmoving party must demonstrate the existence of specific facts in the record
that create a genuine issue for trial. Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th
Cir. 1995). A party opposing a properly supported motion for summary judgment “may
not rest upon the mere allegations or denials of his pleading, but must set forth specific
facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 256 (1986).
II.
Plaintiff’s Participation in IRA Election
Defendants move to dismiss for failure to state claim or for summary judgment,
arguing that Plaintiff already participated in an IRA election, electing to organize during
the 1930s as a part of the Minnesota Chippewa Tribe and the component Mille Lacs
Band. In particular, Defendants assert that the Department of Interior’s 1980 opinion
concluding that “the Chippewas residing at Sandy Lake have been considered Chippewa
of the Mississippi and part of the group known as the Mille Lacs Band” and that “the
Mille Lacs Band is the political successor of the historic Sandy Lake Band” is conclusive
as to the Sandy Lake Band’s reorganization and inclusion as part of the Mille Lacs Band
and Greater Chippewa Tribe. (See Sandy Lake I Compl. ¶ 43, Ex. 23 at 2.) Defendants
assert that Plaintiff cannot now circumvent that agency action and that Plaintiff is not
entitled to another Secretarial election until they either petition the Mille Lacs Band and
Minnesota Chippewa through the tribes’ established, internal tribal mechanisms or they
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complete the federal acknowledgement process and the BIA determines that they are a
federally recognized tribe separate from the Mille Lacs Band.
Plaintiff opposes dismissal on this ground and asserts that Defendants have not
properly supported their contention that the Sandy Lake Band participated in the IRA
election to organize the MCT, and that the contention cannot be considered by the Court.
Plaintiff submits that Defendants’ reliance on the statements of a Field Solicitor
contained in a 1980 opinion are merely assertions upon which Defendants cannot rely to
support their present motions.
Having considered the parties’ arguments on the matter, as well as the materials
cited in support, the Court declines to determine whether the 1980 opinion is conclusive
on the matter of whether Plaintiff participated in an IRA election. Instead, the Court
turns to the parties’ arguments on the merits of the present motions.
III.
Res Judicata
Defendants argue that Plaintiff’s claims in this action are barred by the doctrine of
res judicata. In particular, Defendants assert that Claims Two (violation of the IRA) and
Three (violation of the APA) “are lifted in their entirety from the Original Complaint that
was dismissed for lack of subject matter jurisdiction” and that Count One (violation of
the IRA), Five (violation of the APA), and Six (Breach of Trust) are “copied wholesale
from Plaintiff’s Proposed Amended Complaint that failed to cure subject matter
jurisdiction” in Sandy Lake I. (Doc. No. 7 at 15.) Defendants assert that because these
previously asserted claims were never appealed, they cannot be relitigated via this new
action.
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Plaintiff argues that this case does not meet the requirements for dismissal under
the doctrine of res judicata, as there has not been a final judgment on the merits. In
particular, Plaintiff asserts that in Sandy Lake I, the Court dismissed Plaintiff’s claims
without prejudice for lack of jurisdiction, and therefore Counts Two, Three, and Four are
properly before the Court in this action. In addition, Plaintiff contends that res judicata
does not apply to the Complaint in this action because the basis for jurisdiction in the
Complaint is different than the complaint in Sandy Lake I.
The dismissal of a lawsuit for lack of subject matter jurisdiction bars the
relitigation of the same jurisdictional issue in a subsequent lawsuit. Ins. Corp. of Ireland,
Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 n.9 (1982). In Sandy Lake
I, Plaintiff sought review of Defendants’ decision denying the election request. Sandy
Lake I, 2011 WL 2601840, at *4. The Court dismissed Plaintiff’s lawsuit, finding that
Plaintiff had failed to exhaust its administrative remedies because it failed to invoke the
federal acknowledgement process. Id. The Court reasoned that “by requiring an entity
seeking an IRA election to first request federal acknowledgement, the regulations ensure
that the evidence the Sandy Lake Band offers . . . will be presented to the appropriate
agency with the requisite expertise and established regulatory process.” Id. In its newly
alleged Counts Two and Three, Plaintiff again attempts to seek review of Defendants’
decision to deny Plaintiff’s election request. Moreover, Count Four simply introduces a
new theory as to why the Court should have reached a different result in Sandy Lake I.
(Compl. ¶¶ 46, 47 (alleging a violation of the APA on the basis that the “Secretary
refused to consider the Tribe’s argument” that it was an “Indian tribe within the meaning
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of 25 U.S.C. § 479, and, therefore, was eligible for an IRA Election”)). However,
Plaintiff still has not engaged in the Federal acknowledgment process. Thus, Plaintiff has
again failed to exhaust its administrative remedies and has not overcome the
jurisdictional problem that led to the Court’s dismissal of the same claims in Sandy
Lake I. Therefore, Claims Two, Three, and Four are properly dismissed.
In Claims One, Five, and Six, Plaintiff challenges the Secretary’s promulgation of
regulations governing Secretarial Elections. In particular, Plaintiff alleges that 25 C.F.R.
§ 81.1(w) (the “Regulation” or “Section 81.1(w)”) is void because it conflicts with
Sections 476 and 479 of the IRA, and that the Secretary’s reliance on the Regulation
therefore violated the IRA. (See, e.g., Compl. ¶¶ 21, 22, 51, 52, 54, & 60.) While
Plaintiff did not initially make this challenge in Sandy Lake I, Plaintiff did raise the
argument in opposition to the defendants’ motion to dismiss and attempted to amend its
complaint to comport with the new argument. In Sandy Lake I, the Court dismissed
Plaintiff’s Complaint, concluding that all of Plaintiff’s claims arose from Defendants’
denial of Plaintiff’s request for an IRA election and that subject matter jurisdiction did
not exist for those claims. Sandy Lake I, 2011 WL 2601840, at *4-5. The Court rejected
Plaintiff’s Proposed Amended Complaint because it was untimely filed, and Plaintiffs did
not obtain Defendants’ consent or leave of the Court. Id. at *1 n.1. Later in the opinion,
the Court noted that the “proposed Amended Complaint fails to cure the lack of subject
matter jurisdiction over [Plaintiff’s] claims.” Id. at *5 n.4.
Defendants now argue that because the Court opined that the proposed Amended
Complaint failed to cure the lack of subject matter jurisdiction, Plaintiff is barred from
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relitigating Claims One, Five and Six. In Sandy Lake I, the Court’s discussion of subject
matter jurisdiction as it related to the proposed Amended Complaint was brief and noted
in a footnote. Therefore, the Court will reach the viability of Claims One, Five, and Six
on the merits below.
IV.
Claims One, Five and Six
In its Complaint, Plaintiff argues that Section 81.1(w) is not valid because it
conflicts with the plain meaning of Section 479 of the IRA and federal court precedent
interpreting the same. Specifically, in Count One, Plaintiff contends that Section 81.1(w)
imposes conditions for conducting IRA elections that Congress never intended and
conflicts with the judicial interpretations of the IRA, and that the Secretary acted in
excess of the Secretary’s authority in violation of the IRA by relying on Section 81.1(w).
(Compl. ¶¶ 21-22.) In Count Five, Plaintiff alleges that the promulgation of
Section 81.1(w) was arbitrary and capricious and in direct violation of the IRA. (Compl.
¶ 54.) In Count Six, Plaintiff alleges that Defendants breached its trust duty to Plaintiff
under the IRA by failing to adopt Plaintiff’s interpretation of the phrase “any recognized
Indian tribe now under Federal jurisdiction” contained in Section 479. (Compl. ¶ 61.)
Defendants argue that the Secretary’s regulations governing Secretarial elections comport
with the plain language and purpose of the IRA. Both parties move, respectively, for
summary judgment on this issue.
Section 476 authorizes any Indian tribe to organize a tribal government under a
written constitution adopted at an election called and conducted by the Secretary.
25 U.S.C. § 476. Section 479 defines “Indian tribe” as “any recognized Indian tribe now
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under Federal jurisdiction.” 25 U.S.C. § 479. Section 81.1(w) of the regulations contains
the following definition of “Tribe”:
(1) Any Indian entity that has not voted to exclude itself from the Indian
Reorganization Act and is included, or is eligible to be included, among
those tribes, bands, pueblos, groups, communities, or Alaska Native entities
listed in the FEDERAL REGISTER pursuant to § 83.6(b) of this chapter as
recognized and receiving services from the Bureau of Indian Affairs; and
(2) any group of Indians whose members each have at least one-half degree
of Indian blood for whom a reservation is established and who each reside
on that reservation. Such tribes may consist of any consolidation of one or
more tribes or parts of tribes.
25 C.F.R. § 81.1(w). Section 81.1 thus limits eligibility for IRA elections to Indian
entities included, or eligible to be included, among the entities listed in the Federal
Register as recognized and receiving services from the BIA.
The parties agree that in determining whether Section 81.1(w) is valid, the Court
must analyze the regulation under Chevron U.S.C. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984). “First, always, is the question whether Congress has
directly spoken to the precise question at issue.” Chevron, 467 U.S. at 842-43. In that
first step, “[i]f the intent of Congress is clear, that is the end of the matter; for the court,
as well as the agency, must give effect to the unambiguously expressed intent of
Congress.” Id.
Here, the Court must determine whether the statute makes clear the intent of
Congress as to the meaning of “any recognized Indian tribe” or if the statute is silent or
ambiguous as to the meaning of that term. Plaintiff contends that the definition of
“recognized Indian tribe now under Federal jurisdiction” contained in Section 479 is clear
and unambiguous, and that it means that a tribe must: (1) at any time, including 1934, be
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federally recognized; and (2) in 1934, be under the jurisdiction of the Federal
government. (Doc. No. 17 at 16.) Defendants contend that that the statute is silent, and
therefore ambiguous, as to what constitutes a “recognized Indian tribe” in Section 479.
Defendants further contend that Section 81.1(w), which requires federal recognition, is
consistent with Congress’ intent that eligibility be limited to “any recognized tribe now
under Federal jurisdiction.”
Section 479 authorizes the Secretary to call a Secretarial Election, but limits the
eligibility to “any recognized Indian tribe now under Federal jurisdiction.” 25 U.S.C.
§ 479. The IRA does not provide context as to how the Secretary should determine
whether a particular group of Indians constitutes a “recognized Indian tribe.” Instead, the
statute is ambiguous. 1 Therefore, the Court moves on to the second step of the Chevron
analysis.
In step two of the Chevron analysis, the Court determines whether the agency’s
definition is based on a permissible construction of the statute. Chevron, 467 U.S. at 842
(“[I]f the statute is silent or ambiguous with respect to the specific issue, the question for
the court is whether the agency’s answer is based on a permissible construction of the
1
Plaintiff argues that the argument that Section 479 is ambiguous is contrary to the
holding in Carcieri v. Salazar, 555 U.S. 379 (2009). The Court disagrees. In Carcieri,
the Supreme Court held that the term “now” as used in Section 479 was unambiguous
and imposed a temporal restriction on Indian tribes “under Federal jurisdiction.”
555 U.S. at 392, 395. The Supreme Court in Carcieri did not reach the issue of whether
the term “any recognized Indian tribe” was ambiguous. Nor did the Supreme Court
conclude that an Indian tribe must have been federally recognized in 1934 to be eligible
for IRA benefits. Id. at 397-98.
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statute.”); see also Regions Hosp. v. Shalala, 522 U.S. 448, 457 (1998); Baptist Health v.
Thompson, 458 F.3d 768, 774-75 (8th Cir. 2006). If the agency defines a term in a
reasonable way in light of the Legislature’s design, the Court gives that definition
controlling weight. Regions Hosp., 522 U.S. at 457 (citing Chevron, 467 U.S. at 843
n.11.)
After careful consideration of the parties’ arguments, the Court concludes that
Section 81.1(w) is consistent with the definition of “any recognized Indian tribe” in
Section 479. 2 For an Indian tribe to be eligible to request a Secretarial election under
Section 476, that tribe must meet the definition of Indian in Section 479; Section 479 in
turn limits eligibility to “any recognized Indian tribe now under Federal jurisdiction.” 3
25 U.S.C. § 479 (emphasis added). As discussed above, the term “recognized Indian
tribe” is not defined in the IRA. Section 81.1(w)’s requirement that an Indian tribe be
included or eligible to be included on the list of federally recognized tribes is consistent
2
Plaintiff argues that Section 81.1(w)’s construction of the statute is at odds with
the Department of Interior’s longstanding interpretation of the statute. The Court
disagrees. Instead, Defendants have convincingly pointed out that the historic
considerations utilized by the Department of Interior are incorporated into the
regulations.
Plaintiff also argues that the canons of statutory construction for statutes enacted
for the benefit of Indians compel an interpretation in favor of Plaintiff and that Indian law
canons trump deference due under Chevron. Plaintiff, however, has not provided any
binding authority from the Eighth Circuit; nor has Plaintiff established that the canons
would apply here.
3
The statute does not, as Plaintiff suggests, apply to “all tribes who were under
Federal jurisdiction on June 18, 1934.” Such an interpretation completely ignores the
separate requirement of federal recognition.
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with the requirement that an eligible tribe be “recognized” and is based on a permissible
construction of the statute. Moreover, Section 81.1(w) is consistent with the Supreme
Court’s interpretation of Section 479 in Carcieri v. Salazar, 555 U.S. 379 (2009).
Carcieri held that the term “now under Federal jurisdiction” refers to Indian tribes under
Federal jurisdiction in 1934. As explained in Sandy Lake I, the effect of this holding is
that the Secretary may not expand the definition of Indian tribes eligible for an IRA
election to include those not under Federal jurisdiction in 1934. It does not follow from
this result, however, that requiring an entity to first seek federal acknowledgment (or to
be included or eligible to be included on a list of federally recognized tribes) before
requesting an IRA election exceeds the authority granted to the Secretary.
It also bears repeating that by requiring an entity seeking an IRA election to first
request federal acknowledgment, the regulations ensure that the evidence Plaintiff offers
in support of its claim that it qualifies as an Indian tribe under Section 479 will be
presented to the appropriate agency with the requisite expertise and established
regulatory process.
For the above reasons, the Court concludes that Counts One, Five and Six of
Plaintiff’s Complaint fail as a matter of law and are therefore properly dismissed.
CONCLUSION
Accordingly, based on the files, records, and proceedings herein, and for the
reasons set forth above, IT IS HEREBY ORDERED that:
1.
Plaintiff’s Motion for Partial Summary Judgment (Doc. No. [9]) is
DENIED.
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2.
Defendants’ Motion to Dismiss, or, in the Alternative, Motion for Summary
Judgment (Doc. No. [6]) is GRANTED.
3.
Plaintiff’s Complaint (Doc. No. [1]) is DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: May 4, 2011
s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge
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