Mdewakanton Sioux Indians of Minnesota v. Jewell

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

MDEWAKANTON SIOUX INDIANS :
OF MINNESOTA, et al., :
: Civil Action No.: 16-2323 (RC)
Plaintiffs, :
:
v. : Re Document Nos.: 10, 11
:
1
RYAN ZINKE, Secretary, :
United States Department of the Interior, et al., :
:
Defendants. :

MEMORANDUM OPINION

CONSTRUING DEFENDANTS’ MOTION TO DISMISS AS A MOTION FOR SUMMARY JUDGMENT;
GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT;
GRANTING FEDERAL DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE

I. INTRODUCTION

Plaintiffs seek to compel the Department of the Interior to consult with them as an Indian

tribe. Defendants move to dismiss for, among other reasons, failure to exhaust administrative

remedies and the statute of limitations. For the reasons discussed below, the Court converts

Defendants’ motion to a motion for summary judgment, and grants Defendants summary

judgment because Plaintiffs have failed to exhaust their administrative remedies.

II. BACKGROUND2

Plaintiffs consist of three individuals and the Mdewakanton Sioux Indians of Minnesota

(MSIM), a group that Plaintiffs assert is an American Indian tribe acknowledged by the federal

1
Secretary Zinke is substituted as a defendant pursuant to Federal Rule of Civil Procedure 25(d).
2
For the purposes of resolving this motion, the Court accepts the factual allegations of
the plaintiff. See Talenti v. Clinton, 102 F.3d 573, 574 (D.C. Cir. 1996).
government. Compl. at 1–2, ECF No. 1. Plaintiffs bring suit against the Secretary of the United

States Department of the Interior and the United States. Plaintiffs’ expansive complaint seeks

relief under the Administrative Procedure Act (APA). Compl. ¶¶ 231–40. In addition to their

APA claims, Plaintiffs seek declaratory and injunctive relief regarding the same claims. Compl.

¶¶ 241–59.

Although Plaintiffs request relief in several areas, they center on the claim that, although

Defendants are required to consult with all tribes, Defendants have refused to consult with

Plaintiffs.3 See Compl. ¶ 236 (asserting that Defendants’ “policies, practices, and customs”

violate Plaintiffs’ “rights and entitlements under federal law” because Defendants do not

“consult[] directly with” Plaintiffs).

3
Neither Plaintiffs nor Defendants identify a statute requiring the Department to consult
with tribes. The Court notes that the Department of the Interior has issued a Departmental
Manual addressing “government-to-government consultation” with Indian Tribes. Department of
the Interior, Department Manual, Part 512 DM 4, https://elips.doi.gov/ELIPS/DocView.aspx?
id=4220&dbid=0. According to the Departmental Manual, “It is the policy of DOI to . . . consult
with tribes on a government-to-government basis whenever DOI plans or actions have tribal
implications.” Id. at § 4.4. The Departmental Manual identifies Executive Order 13,175 as its
basis. The Executive Order required each agency to develop “an accountable process to ensure
meaningful and timely input by tribal officials in the development of regulatory policies that
have tribal implications.” Exec. Order No. 13,175 § 5, 65 Fed. Reg. 67,249 (Nov. 6, 2000),
https://www.gpo.gov/fdsys/pkg/FR-2000-11-09/pdf/00-29003.pdf.
Both the Departmental Manual and the Executive Order limit consultation to only tribes
acknowledged by the Secretary of the Interior and included on a federal list. See Department
Manual § 4.3(A) (defining an Indian Tribe which must be consulted as “[a]ny American Indian
or Alaska Native tribe, band, national, pueblo, village, or community that the Secretary of the
Interior acknowledges to exist as an Indian tribe pursuant to the Federally Recognized Tribe List
Act of 1994”); Exec. Order No. 13,175 § 1(b) (defining an Indian Tribe as “an Indian or Alaska
Native tribe, band, nation, pueblo, village, or community that the Secretary of the Interior
acknowledges to exist as an Indian tribe pursuant to the Federally Recognized Indian Tribe List
Act of 1994”). Although Plaintiffs repeatedly make the contrary claim that “MSIM does not have
to apply to the Department to be ‘recognized’ prior to seeking its right of consultation as an
‘acknowledged’ tribe,” apparently because “there is a distinct difference between an
‘acknowledged tribe’ and a ‘recognized tribe,’” Pls.’ Opp’n at 24, ECF No. 13, they offer no
authority for this proposition.

2
 First, the Court summarizes Plaintiffs’ description of the MSIM’s history as a tribe.

According to Plaintiffs, the MSIM were acknowledged by an act of Congress on February 16,

1863 (Act of 1863). That statute referred to the MSIM in the context of annulling several treaties,

including a treaty with the MSIM. Act of Feb. 16, 1863, 12 Stat. 652 (1863) (“Whereas the United

States heretofore became bound by treaty stipulations to the . . . Medawakanton4 . . . bands of the

Dakota or Sioux Indians . . . . Be in enacted . . . [t]hat all treaties heretofore made and entered

into by the . . . Medawakanton . . . bands of Sioux or Dakota Indians . . . with the United States,

are hereby declared to be abrogated and annulled . . . .”).5 Plaintiffs assert that, after being recognized

by the federal government, the tribal status of the MSIM has never been terminated. Compl.

¶¶ 10–11. Plaintiffs define the current MSIM as “those American Indians and lineal descendants

who remained or returned to Minnesota in or about 1863 whom Congress identified as a band of

Indians as reflected in the Act of February 1863.” Compl. ¶ 12. The individual plaintiffs argue

that they are members of MSIM, Compl. ¶¶ 17–22, and they attach a list of several thousand

other individuals who “self-identify” as MSIM, Compl. ¶ 24; ECF No. 1-1, Ex. A.

Plaintiffs do not dispute that the MSIM is not “recognized” by the Secretary of the

Interior or included on the list of Indian tribes published by the Secretary pursuant to 25 U.S.C.

§ 5130(2) et seq. See, e.g., Compl. ¶¶ 246–50. However, Plaintiffs assert that they have been

“acknowledged” by the Secretary in the past—although the Secretary currently refuses to

4
“Medawakanton” appears in various documents. Neither party disputes that this is an
alternative spelling of “Mdawakanton.”
5
Plaintiffs also identify the Appropriation Act of June 29, 1888, 25 Stat. 228, stating that
land was to be purchased “[f]or the support of the full-blood Indians in Minnesota, belonging to
the Medawakanton ban[d] of Sioux Indians . . .” as an acknowledgement of their tribe. Compl. ¶ 34.
Plaintiffs further cite two Department of the Interior documents from 1935 as evidence
that the Department “recognize[d]” the MSIM after the 1934 passage of the Indian Reorganization
Act, Compl. ¶¶ 50–54, although both documents describe the conclusions of the Department that
at least some MSIM members cannot be recognized as a tribe. See generally note 8, infra.

3
acknowledge them—and this status is sufficient for the relief they seek. Compl. ¶¶ 243, 245,

257. Plaintiffs argue that, because they are an acknowledged tribe, Defendants are required to

consult with them, Compl. ¶ 236, and the refusal to consult is equivalent to “termination of the

MSIM without a termination statute in violation of the [APA].” Compl. ¶¶ 236–37, 251.

Plaintiffs’ description of the injuries Defendants have inflicted upon them is lengthy and

wide-ranging. After wrestling with Plaintiffs’ complaint, cf. infra Part III, the Court understands

their claim to focus on Defendants’ alleged refusal to consult with Plaintiffs concerning proposed

constitutional amendments to the constitution of the Prairie Island Indian Community and

changes to the land assignment system at Prairie Island. However, Plaintiffs also provide,

apparently in way of context, references to various other events that they do not specifically tie

to a cause of action.

First, the Court summarizes Plaintiffs’ allegations concerning consultation on the proposed

changes at Prairie Island. See, e.g., Compl. ¶ 125 (arguing that Defendants are required to “consult[]

directly with [MSIM] regarding all matters affecting the [MSIM] and its rights vis-à-vis [PIICSM]

and the other communities”); see also Compl. ¶¶ 167–69 (“The MSIM in this lawsuit pursues

two different land claims . . . . [first,] for federal land assignments for MSIM at Prairie Island . . . .”).

This claim requires a brief detour into the history of the lands and MSIM members at

Prairie Island. The federal government purchased land at Prairie Island6 in accordance with the

1888–1890 Appropriations Acts—and, according to Plaintiffs, this land was purchased on behalf

of the MSIM. Compl. ¶¶ 14, 34; see also Pls.’ Surreply Mem. (Pls.’ Surreply), ECF No. 22 at 5.

After the lands were purchased, the Secretary of the Interior assigned lands to some, but not all,

6
Plaintiffs’ complaint also mentions similarly situated lands purchased elsewhere in
Minnesota, including at Lower Sioux and Shakopee, but Plaintiffs do not raise claims concerning
those areas. See, e.g., Compl. ¶¶ 34, 38, 40, 42.

4
MSIM members (because insufficient land was available) and thus only some of the MSIM

members lived on the purchased lands. Compl. ¶¶ 35–37. Later, those MSIM members living on

the purchased lands organized into the Prairie Island Indian Community in the State of

Minnesota (PIICSM) in accordance with the Indian Reorganization Act of 1934. Compl. ¶¶ 39–40.

PIICSM was organized in the non-tribal form of Indians residing on a reservation.7 Compl. ¶ 44.

According to Plaintiffs, those MSIM members who lived in the organized communities severed

their tribal relations, but those without land assignments did not. Compl. ¶¶ 38, 40, 43. The entity

at Prairie Island also organized into a corporation, the Prairie Island Indian Community (PIIC).

Compl. ¶ 104. Plaintiffs assert that there is a difference between PIICSM, the federally

recognized community, and PIIC, the corporation.8 See Compl. ¶¶ 106–14. In 1980, a federal

7
The federal government apparently believed that the acts authorizing the purchase of
land required the MSIM to sever their tribal relations, and they could therefore no longer be
organized as a tribe, but only as communities on reservations. Multiple communities were
created because of the distance between the different areas of land. See Letter from John Collier
to Joe Jennings (Nov. 27, 1935), ECF No. 1-1, Ex. C (“Some 1151 acres of land . . . have been
purchased for [the Mdewakanton Sioux Indians] under various appropriation acts. . . . The
Indians were permitted to use these lands under assignment established by the Department. . . .
These Indians cannot be recognized as a tribe. The statutes providing for land purchased for
these Indians expressly restricted the use of such lands to Indians who have abandoned their
tribal relations. . . . The only basis of organization, therefore for these Indians is residence on a
reservation.”); see also Mem. to the Comm’r of Indian Affairs from Charlotte T. Westwood and
J.R. Venning (undated), ECF No. 1-1, Ex. D (explaining that the Prairie Island and Lower Sioux
communities were organized separately because “[t]he constitution submitted in October for the
Mdewakanton Sioux proposed a single organization. . . . On the legal side, however, it was
subsequently determined by the Solicitor . . . that these Indians had under the land purchase acts
abandoned tribal relations and therefore were not privileged to organize as a tribe over various
reservati [sic] Their only basis of organization was as Indians residing on a reservation. It was
the opinion of your representatives . . . that the communities were too widely separated to be
considered or treated as one reservation . . . Under present law, the land which is the basis of [the
Prairie Island and Lower Sioux] communities was land purchased for the Mdewakanton Sioux
residing in Minnesota . . . .”).
8
The Court notes that the constitution of the federally-recognized community reads
“Prairie Island Indian Community,” ECF No. 1-1, Ex. I, but acquiesces in Plaintiffs’ terminology
for the purpose of this opinion.

5
statute was passed which Plaintiffs assert “placed the parcels at Prairie Island in trust for the

[PIIC]” but “preserved the property rights of the MSIM assignees.” Compl. ¶¶ 104–05; Act of

Dec. 1980, Pub L. 9-557, 94 Stat. 3262. According to Plaintiffs, this beneficial interest was

limited to PIIC, the corporation, rather than PIICSM. Compl. ¶ 106; ¶¶ 87–117. In 1996 the

Prairie Island community requested that the corporate charter of PIIC be revoked, and Congress

acceded. Compl. ¶¶ 109–11. Plaintiffs therefore argue that, because of that revocation, PIICSM

(the federally-recognized entity) has no beneficial interest over the lands at Prairie Island,

Compl. ¶ 114, and the beneficial interest has reverted to the MSIM, Compl. ¶ 115. In particular,

Plaintiffs appear to believe that they are entitled to a particular parcel of the land at Prairie

Island. See Compl. ¶ 115 (“6096 Whipple Way now belongs to the [MSIM] generally—and

should be assigned to the Plaintiff representatives specifically.”).

Against this backdrop, Plaintiffs argue that recent proposed changes to the PIICSM

constitution will, among other injuries, injure their rights to the lands at Prairie Island. PIICSM,

the federally-recognized entity, has a constitution. Compl. ¶ 44; see also Prairie Island Indian

Community Constitution, ECF No. 1-1, Ex. E. According to Plaintiffs, the constitution includes

references to the PIICSM as part of the larger group of the MSIM and provides for an annual

MSIM conference. Compl. ¶¶ 45, 59, 61–62. Recently, the PIICSM has sought to amend its

constitution through the Department’s Secretarial election process. Plaintiffs object that the

proposed amendments “eliminate all references to the MSIM and its rights,” Compl. ¶ 123, and

“appear to be a federal effort to ‘officially’ terminate the [MSIM] without a Congressional Act,”

Compl. ¶ 142. See Compl. ¶ 129 (listing Plaintiffs’ objections to the proposed revisions).

Plaintiffs also appear to view the proposed constitutional amendments as related to their alleged

loss of rights under the land assignment system. See Compl. ¶¶ 77–80 (complaining that

6
Defendants did not consult Plaintiffs about the “termination of the federal land assignment

system and the annual meetings” under the proposed constitutional amendments). For these

reasons, Plaintiffs argue that the proposed amendments violate their rights.9 Compl. ¶ 123.

Finally, the Court reaches the kernel of Plaintiffs’ complaint. Plaintiffs argue that they

have requested that the Department consult with them concerning the proposed constitutional

amendments and changes to the land assignment system, but that the Department has refused to

do so in violation of the APA. See Compl. ¶ 80 (in relation to the proposed constitutional

amendments for the Prairie Island Indian Community, Plaintiffs complain that “the Department

of the Interior does not consult with the [MSIM] about the termination of their rights, including

the termination of the federal land assignment system and the annual meetings for the [MSIM]”);

see also Pls.’ Mem. Opp’n Fed. Defs.’ Mot. Dismiss (Pls.’ Opp’n) at 31, ECF No. 13 (“MSIM

representatives contacted the Department in 2016 requesting consultation regarding the PIIC

constitutional amendments and the 30 acre land assignments at PIIC . . . .”).

As previously mentioned, Plaintiffs’ complaint refers to a variety of other topics, which

the Court sketches briefly. Plaintiffs’ argue that they have been deprived of some rights to a

twelve square mile area of land dating from an 1863 Act.10 See Compl. ¶¶ 167–69 (“The MSIM

9
The Court previously addressed and rejected Plaintiffs’ request for a temporary
restraining order and preliminary injunction concerning the proposed amendments to the
PIICSM constitution. See generally Order, ECF No. 20; Mem. Op., ECF No. 21. As discussed in
this opinion, the Court now rejects the underlying claims.
Plaintiffs’ complaint alludes to a new set of rules adopted by the Department of the
Interior for handling Secretarial elections. Compl. ¶¶ 123–125, see also 80 Fed. Reg. 63094.
Although it appears that Plaintiffs believe the new rules are improper in some way, Plaintiffs do
not explain what the new rules change or why these changes are impermissible. The Court
understands Plaintiffs’ reference to the new rules to refer only to Plaintiffs’ claim that the
Defendants’ “policies, practices, and customs violate the rights of the [MSIM] by not consulting
directly with it” concerning the secretarial elections. Compl. ¶¶ 77–80, 125.
10
According to Plaintiffs, the Act of February 16, 1863 was intended to “award the
MSIM land.” Compl. ¶ 202. That Act authorized the Secretary of the Interior to “set apart”

7
in this lawsuit pursues two different land claims[, second,] . . . for the 12 square miles or legal

equivalent set apart for the MSIM by the Secretary of the Interior in 1865 under section 9 of the

February 16, 1863 Act.”). In addition, Plaintiffs’ complaint contains a skeletal description of

eight “additional subject areas as possible areas of legal dispute.”11 Compl. ¶¶ 172–73. Plaintiffs

do not state if they have ever sought or been denied consultation with Defendants concerning the

twelve square mile area of land or any of their eight additional topics. As discussed in greater

depth in Part III, the Court is unable to identify any claims beyond Plaintiffs’ claim that

Defendants refused to consult with them in 2016 concerning the proposed constitutional

public land as “an inheritance to said Indians and their heirs forever.” Compl. ¶ 207; Pls.’
Surreply at 2–5, ECF No. 22; see also Act of Feb. 16, 1863, ch. 37, 12 Stat. 652, App. 126–28.
The Secretary of the Interior asked for his designee to select land, and initialed the selection of
twelve square miles. Compl. ¶¶ 211–13. Plaintiffs argue that this initialing sufficed to set aside
land and convey it to the MSIM. Compl. ¶¶ 84, 213. Plaintiffs claim that these lands were then
sold to the public instead of being preserved for the MSIM. Compl. ¶ 85 (“[T]he [MSIM] were
unable to settle there due to local white hostility.”); Compl. ¶¶ 216–19; Pls.’ Surreply at 2–5; see
also Act of Feb. 16, 1863, App. 126–28. When the land was sold and when Plaintiffs allege they
should have been consulted is not clear. Plaintiffs now argue that they are entitled to either the
twelve square miles or an equivalent. Compl. ¶ 236–38.
11
The eight areas are:
(1) Remaining federal land assignments rights regarding the communities’
reservations;
(2) Half breed reservation tract on Lake Pepin, Minnesota;
(3) Reservation settlement areas near Fort Snelling, Coldwater Springs, Grey
Cloud Island, Lake Calhoun, Hastings, Nicollet Island, Mendota,
Bloomington;
(4) 2002 and prior sale of former Sioux reservation;
(5) Inadequate representation before Indian Claims commission including
Docket 363;
(6) Trust funds;
(7) Legal claims to hunting, fishing, gathering of foods, medicinal plants and
other items for cultural uses within reservation and aboriginal lands; and
(8) Any other land, rights and moneys not currently identified.
Compl. ¶ 173. Plaintiff’s surreply elaborates on their argument concerning (2), an area of land at
Lake Pepin, which Plaintiffs apparently believe they are entitled to purchase through “equitable
pricing,” Pls.’ Surreply at 1–2, 6, see also Act of July 17, 1854, 10 Stat. 304, App. 21.

8
amendments and changes to the land assignment system at Prairie Island. Any other claim cannot

be discerned by this Court and would be susceptible to dismissal for failure to state a claim.

Defendants moved to dismiss Plaintiffs’ claims for multiple reasons. See generally Fed.

Defs.’ Mot. Dismiss & Mem. Supp. (Defs.’ MTD), ECF No. 10. Plaintiffs opposed the motion.

See generally Pls.’ Opp’n. In addition, Plaintiffs were granted leave to file and filed a surreply in

response to Defendants’ reply. See generally Pls.’ Surreply Mem. (Pls.’ Surreply), ECF No. 22;

see also Minute Order of June 20, 2017. Defendants’ motion is thus ripe for adjudication.12

III. DISCUSSION

To frame its analysis, the Court must determine the scope of Plaintiffs’ claims. It is clear

that Plaintiffs assert an APA claim based on Defendants’ alleged refusal to consult. See Compl.

¶¶ 231–40 (“Count I: Violation of the Administrative Procedure Act”). It is also clear that

Plaintiffs seek declaratory and injunctive relief relating to that claim. See Compl. ¶¶ 241–59

(“Count II: Declaratory Judgment” and “Count III: Injunction”).

12
Plaintiffs requested oral argument on Defendants’ motion to dismiss. Pls.’ Opp’n at 1,
ECF No. 13. Because oral argument would not assist the Court, the Court denies the motion for
oral argument. See LCvR 7(f) (stating that “allowance [of oral argument] shall be within the
discretion of the Court”).
In addition, Defendants seek for this Court to take judicial notice of the opposition to the
motion to dismiss filed in the lawsuit Wolfchild v. Redwood County (Redwood County), 824 F.3d
761 (8th Cir. 2016), cert. denied 137 S. Ct. 447 (2016). Fed. Defs.’ Mot. Judicial Notice, ECF
No. 11. Plaintiffs do not oppose judicial notice. The Federal Rules of Evidence permit a court to
take judicial notice of facts that “can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2). Because a publicly
available court filing meets these criteria, the Court grants Defendants’ motion for judicial
notice. See SEC v. Bilzerian, 112 F. Supp. 2d 12, 15 (D.D.C. 2000), aff’d, 75 F. App’x 3 (D.C.
Cir. 2003) (“Per [the defendant’s] request, the Court takes judicial notice of the briefs and
petition for rehearing filed with the United States Court of Appeals for the Eleventh Circuit.”
(citing Fed. R. Evid. 201)).
Finally, construing Defendants’ motion to dismiss as incorporating a motion to waive
compliance with Local Civil Rule 7(n), Defs.’ MTD at 1 n.1, ECF No. 10, the Court grants the
motion because the administrative record is not necessary for its decision here.

9
 First, the Court attempts to identify the specific topics and occasions on which Plaintiffs

allege that they were wrongfully denied consultation. Plaintiffs’ complaint alludes to several

topics on which Plaintiffs assert consultation was due. See Compl. ¶ 237 (“[The Defendants]

have denied consultation to the Plaintiffs as Mdewakanton Sioux Indians of Minnesota regarding

matters such as termination of the federal land assignment system for the Mdewakanton Sioux

Indians of Minnesota at Prairie Island Indian Community, about the 12 square miles or legal

equivalent they are entitled to because the Secretary of the Interior set apart 12 square miles for

them ‘forever’ under the February 1863 Act, and about termination of the MSIM without a

termination statute in violation of the Administrative Procedure Act . . . .”). However, Plaintiffs

do not provide any details about many of these topics, such as when they requested or were

denied consultation. The Court can identify only one specific instance in which consultation was

allegedly denied. That instance concerns the constitutional amendments and land assignment

system at PIIC in 2016. See Pls.’ Opp’n at 31 (“Once the MSIM representatives contacted the

Department in 2016 requesting consultation regarding the PIIC constitutional amendments and

the 30 acre land assignments at PIIC, the six year statute of limitations began.”). The Court is

unable to discern any other specific occasions on which Plaintiffs assert they were denied

consultation, including any requests for consultation concerning the 12 square mile set-aside or

Plaintiffs’ eight other topics of possible dispute. The Court therefore considers only Plaintiffs’

claim that they were denied consultation that they requested in 2016 about the constitutional

amendments and land assignment system at PIIC. However, the Court’s conclusion infra that

Plaintiffs have failed to exhaust their administrative remedies would equally bar any other claims

concerning denial of consultation because Plaintiffs do not assert that they have ever exhausted

their administrative remedies.

10
 In addition to their claim that they were denied consultation in 2016, portions of Plaintiffs’

complaint leave open the possibility that Plaintiffs seek to assert—in this action—substantive

claims under other statutes. See, e.g., Compl. at 60 (seeking that the Court “[d]eclare that the

Defendants have violated the statutory rights of the Plaintiffs . . . by failing to make future land

assignments under the 1863 Act, 1888–1890 Appropriation Acts and 1980 Act; and by failing to

provide possession of the twelve square miles of land awarded under the 1863 Act or legal

equivalent”); Compl. at 61 (seeking that the Court “[i]ssue an injunction . . . requiring the

Defendants to begin future land assignments under the 1863 Act, 1888–1890 Appropriation Acts

and 1980 Act; and requiring Defendants to provide possession of the 12 square miles of land

awarded in 1865 under the February 1863 Act or a legal equivalent”); Compl. ¶ 87 (“The

Department, after Congressional revocation of the Prairie Island Indian Community corporate

charter in 1996, must make land assignments to the MSIM.”); Compl. ¶ 240 (arguing that

because Defendants have violated “the 1863 Act, 1888–1890 Appropriation Acts, Indian

Reorganization Act, 1980 Act and other statutes” their actions were “arbitrary, capricious, abuses

of discretion, and not in accordance with the law” in APA terms); see also Compl. ¶ 173 (listing

eight areas of possible legal dispute).

Upon consideration of Plaintiffs’ complaint in its entirety, the Court concludes that

Plaintiffs currently seek to challenge only the Defendants’ refusal to consult under the APA, and

describe for context their belief that such consultation would lead the Department to take other

substantive actions, without the intent to raise those claims until the current action resolves their

tribal status and whether Defendants must consult with them. See Compl. at 2 (“MSIM sues the

United States to acknowledge MSIM’s existence and to enjoin the United States from continuing

arbitrary decisions without informing the MSIM . . . .”); Compl. ¶ 155 (“[T]he Department’s

11
policies, practices and customs treating the MSIM as if it was not an acknowledged tribe is in

legal error.”). This conclusion is buttressed by Plaintiffs’ explanations of their claims in their

opposition to Defendants’ motion to dismiss. See, e.g., Pls.’ Opp’n at 30, ECF No. 13

(“Defendant[s] commit[] legal error by not acknowledging the MSIM consistent with its

administrative record. Once acknowledged, the MSIM may exercise rights under the 1934 IRA,

the 1863 Act, the 1888–1890 Acts, and the 1980 Act.”); Pls.’ Opp’n at 34–35 (“MSIM’s right as

an acknowledged tribe under the 1934 IRA to consultation with the Department is being

unlawfully withheld. . . . [T]he Complaint alleges that once the MSIM is acknowledged by the

Department, it will exercise its rights under unrepealed statutes with current legal effect—namely

the 1934 IRA, February 1863 Act, 1888–1890 appropriation acts and the 1980 Act.”); Pls.’

Opp’n at 36 (“Once the Department consults with the MSIM as an acknowledged tribe under the

1934 IRA, MSIM also complains of the Department’s failure to provide them rights to the 1886

lands at the Prairie Island Indian Community . . .”); Pls.’ Opp’n at 36 (“Once the Department

consults with the MSIM as an acknowledged tribe under the 1934 IRA, MSIM also complains of

the Department’s failure to provide them rights to the 12 square miles of land.”).

Indeed, in response to Defendants’ argument that Plaintiffs failed to state a claim,

Plaintiffs identify only a cause of action under the APA for failure to consult. See, e.g., Pls.’

Opp’n at 33–34 (“The APA provides a cause of action for MSIM to sue the government [for]

refusing to consult with the MSIM as an acknowledged tribe under the 1934 IRA with powers to

exercise rights under unrepealed statutes with current legal effect—IRA, February 1863 Act,

1888–1890 Appropriation Acts, etc.—including land rights and reservation boundaries based on

statutory restrictions.”); Pls.’ Opp’n at 35–36 (“Now, the Plaintiffs complain of the Department

of the Interior’s ‘policies, practices, and customs’ of withholding the right of consultation from

12
the MSIM as an acknowledge [sic] tribe under the 1934 IRA. In this way, Plaintiffs challenge

discrete agency action . . . .”). Throughout their opposition, Plaintiffs do not identify any statute

other than the APA that provides a cause of action, or point to any alleged final agency action at

issue other than the Department’s various failures to consult. See generally Pls.’ Opp’n at 33–37.

The Court therefore concludes that Plaintiffs bring exclusively a claim under the APA for

Defendants’ failure to consult with them as a tribe, and, in particular, for failure to consult in

2016 regarding the proposed constitutional amendments and changes to the land assignment

system at PIIC.13 Therefore, the Court turns to Defendants’ challenges in light of Plaintiffs’

single claim.14

A. Administrative Exhaustion

Defendants argue that summary judgment15 is warranted because Plaintiffs did not

exhaust their administrative remedies. Plaintiffs do not assert that they have exhausted their

13
To the extent that Plaintiffs attempt to bring any other claims, those claims are
dismissed. Any claim that the Plaintiffs challenge any final agency action other than the failure
to consult has both been waived by Plaintiffs in their opposition, and cannot be discerned from
Plaintiffs’ complaint. See Fletcher v. U.S. Dep’t of Justice, 17 F. Supp. 3d 89, 92 (D.D.C. 2014)
(citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on other grounds by Harlow v.
Fitzgerald, 457 U.S. 800 (1982)) (“A motion to dismiss under Rule 12(b)(6) does not test a
plaintiff’s ultimate likelihood of success on the merits; rather, it tests whether a plaintiff has
properly stated a claim.”). Any claim that Plaintiffs seek relief under a statute other than the APA
is dismissed because Plaintiffs have not identified a cause of action. Cf. Defs.’ MTD at 20–21.
14
Because the Court agrees with Defendants that Plaintiffs have not exhausted their
administrative remedies and grants Defendants summary judgment on that basis, the Court does
not address Defendants’ arguments that Plaintiffs are also precluded, Defs.’ MTD at 21–25, or
failed to join a necessary party, Defs.’ MTD at 25–26.
15
In order to reach the issue of administrative exhaustion, the Court converts Defendants’
motion into one for summary judgment. See Shane v. United States, No. 07-577, 2008 WL
101739, at *7 (D.D.C. Jan. 9, 2008) (“T]he 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.”); see also Kim v. United States,
632 F.3d 713, 719 (D.C. Cir. 2011) (noting that when the court refers to materials outside the

13
administrative remedies, but argue that they are excused from doing so because of the

unreasonable delay, incapacity of the process, and bias in the Department. Pls.’ Opp’n at 37–38.

Because Plaintiffs have participated in neither the Department’s administrative appeal process

for the denial of consultation nor the Department’s process to seek recognition as a tribe, the

Court will grant Defendants summary judgment.16

“[N]o one is entitled to judicial relief for a supposed or threatened injury until the

prescribed administrative remedy has been exhausted.” Ass’n of Flight Attendants-CWA v. Chao,

493 F.3d 155, 158 (D.C. Cir. 2007) (quoting Myers v. Bethlehem Shipbuilding Corp., 303 U.S.

41, 50-51 (1938)); see also Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004) (holding that

“failure to exhaust precludes judicial review if ‘the purposes of exhaustion’ and the ‘particular

administrative scheme’ support such a bar” (citations omitted)). Defendants allege that Plaintiffs

have failed to exhaust their remedies in two ways.

pleadings to resolve a 12(b)(6) motion, it must “convert the motion to dismiss into one for
summary judgment”).
Here, such conversion is appropriate. See Bowe-Connor v. Shinseki, 845 F. Supp. 2d 77,
85–86 (D.D.C. 2012) (holding that a district court may exercise its discretion to convert a motion
to dismiss into a motion for summary judgment when it would be “fair to both parties” (citations
omitted)). In this case, Plaintiffs were on-notice after Defendants’ motion to dismiss that the
exhaustion of administrative remedies was at issue. See Defs.’ MTD at 16–20, ECF No. 10.
Plaintiffs addressed these concerns in part, but did not claim to have taken any steps toward
using administrative remedies or cite any documents in their opposition. See Pls.’ Opp’n at 37–40,
ECF No. 13; see also Munsell v. Dep’t of Agric., 509 F.3d 572, 592 (D.C. Cir. 2007) (upholding
district court’s decision as a grant of summary judgment because the Defendants raised
exhaustion in their motion to dismiss and the parties addressed it). The Court therefore converts
Defendants’ motion into one for summary judgment.
16
As discussed supra, the Court interprets Plaintiffs’ complaint to contain only a claim
concerning the denial of consultation in 2016. However, any other occasions on which Plaintiffs
believe they were denied consultation would also be subject to summary judgment for failure to
exhaust for the same reasons, because Plaintiffs do not assert that they have ever made use of the
administrative process.

14
 First, the Department provides an administrative process, as described in 25 C.F.R. § 2.8,

for appealing inaction by the Department. See Defs.’ MTD at 16–17, ECF No. 10; see also 25

C.F.R. § 2.8 (describing processes for appeal from the “inaction” of an official by a person

“whose interests are adversely affected” by the inaction). Plaintiffs could have used this

administrative process to appeal the Department’s alleged failure to consult them in 2016.

Plaintiffs, however, do not claim that they have ever attempted to appeal through the

Department’s administrative process. This Court agrees with the determination of many courts in

other jurisdictions that a failure to exhaust the appeal process of 25 C.F.R. § 2.8 prevents

Plaintiffs from pursuing an APA claim. See, e.g., Jech v. Dep’t of Interior, 483 F. App’x 555,

560 (10th Cir. 2012); Villegas v. United States, 963 F. Supp. 2d 1145, 1157 (E.D. Wash. 2013);

Miranda v. Salazar, No. 12-2216, 2013 WL 3367311, at *5–6 (C.D. Cal. July 3, 2013);

Casanova v. Norton, No. 05-1273, 2006 WL 2683514, at *2 (D. Ariz. Sept. 18, 2006).

Second, Plaintiffs seek a right (consultation) that they claim is due because of their status

as an Indian tribe. When other groups have sought relief that hinges upon their tribal status, the

D.C. Circuit has required them to exhaust the Department’s Part 83 process for tribal recognition

before seeking a judicial determination of their tribal status. The Court finds that the same

concerns require exhaustion of the Part 83 process here. The Part 83 process is the Department’s

formal avenue to recognize groups as Indian Tribes. See 25 C.F.R. Part 83; see also James v.

U.S. Dep’t of Health & Human Servs., 824 F.2d 1132, 1136 (D.C. Cir. 1987) (stating that Part 83

lays out the process “allow[ing] any Indian group that is not currently acknowledged by the

Department of the Interior to apply for federal recognition”). If a group is unsatisfied with the

result of the Part 83 process, they may seek review before an ALJ, 25 C.F.R. § 83.38, and

subsequently by the Assistant Secretary, id. § 83.40. The decision of the Assistant Secretary is a

15
final agency action for APA purposes, id. § 83.44, and therefore subject to judicial review. See

Mackinac Tribe v. Jewell, 829 F.3d 754, 758 (D.C. Cir. 2016) (“[R]eview will be possible after

the [plaintiffs] ha[ve] completed the Part 83 procedure.”), cert. denied, 137 S. Ct. 638 (2017).

The D.C. Circuit has held that courts should require putative tribes to complete the Part

83 process before undertaking a judicial determination of their tribal status. See id. at 757

(“[W]hen a court is asked to decide whether a group claiming to be a currently recognized tribe

is entitled to be treated as such, the court should for prudential reasons refrain from deciding that

question until the Department has received and evaluated a petition under Part 83.”); see also

James, 824 F.2d at 1136 (holding that a Part 83 petition “is required as a prerequisite to

acknowledgment”). This rule has been applied when the relief sought by the group asserting

tribal status was the ability to conduct an election under the IRA, Mackinac, 859 F.3d 754, or

inclusion on the Secretary’s list of federally acknowledged tribes, James, 824 F.2d 1132. The

Court sees no reason to depart from this rule in the current case where Plaintiffs seek the

consultation-rights associated with tribal status.17 Indeed, even when there was no requirement of

administrative exhaustion because a plaintiff’s claims were not brought under the APA, courts

have deferred to the Department’s initial determination of whether or not a group was a tribe

because of the Department’s superior expertise. See, e.g., Golden Hill Paugussett Tribe of

Indians v. Weicker, 39 F.3d 51, 59–60 (2d Cir. 1994) (citing the Department’s “structured

administrative process to acknowledge ‘nonrecognized’ Indian tribes using uniform criteria, and

17
Nor would Plaintiffs be excused from the Part 83 process if—as they assert—they had
previously been recognized as a tribe but wrongfully terminated. See Muwekma Ohlone Tribe v.
Salazar, 708 F.3d 209, 218–19 (D.C. Cir. 2013) (“[T]he Part 83 process applies to a petition of a
previously recognized tribe that seeks current recognition on that basis.” (citing 25 C.F.R.
§ 83.8(a)); see also Mackinac, 749 F.3d at 757 (“[A] tribe seeking to be acknowledged by the
Secretary must pursue the Part 83 process even if the tribe claims . . . that it has previously been
recognized by the federal government.” (citing Muwekma, 708 F.3d 218)).

16
its experience and expertise in applying these standards”). The Court therefore concludes that

Plaintiffs here must complete the Part 83 process before the Court will adjudicate if the

Department erred by denying them consultation.18

Plaintiffs tacitly concede that they have not exhausted either their internal appeals or the

Part 83 process. Instead, Plaintiffs advance three reasons to excuse their failure.19 “Courts have

discretion to excuse the [exhaustion] requirement where the litigant’s interest in an immediate

judicial forum clearly outweighs the institutional interests underlying the exhaustion

requirement. For example, exhaustion may be excused if delaying judicial review would cause

irreparable injury, if the agency is not competent to address the issue or to grant effective relief,

or if further pursuit of an administrative remedy would be futile.” Ass’n of Flight Attendants-

CWA, 493 F.3d at 159 (citations omitted). Contrary to Plaintiffs’ contentions, none of these

reasons applies here.

18
The Court cautions that its conclusion here that Plaintiffs must complete the Part 83
process does not determine whether federal recognition is a prerequisite for the consultation
Plaintiffs seek, because that issue is not squarely before the Court. See Mackinac, 829 F.3d at
757–58 (directing plaintiff to pursue tribal recognition through the Department despite the open
“question [of] whether a group must be recognized to be eligible to organize under the IRA and
whether that recognition must be marked by the group’s appearance on the Secretary’s list of
federally recognized tribes”).
19
The exhaustion requirement of the APA is prudential, rather than jurisdictional. See
John Doe, Inc. v. DEA, 484 F.3d 561, 565 (D.C. Cir. 2007) (“When judicial review is sought
under the APA, for example, the requirement of ‘final agency action’ is not jurisdictional.”
(collecting citations)). Because the requirement is prudential, the Court will consider if any
failure to exhaust by Plaintiffs may be excused. Cf. Adamski v. McHugh, No. 14-0094, 2015 WL
4624007, at *7 (D.D.C. July 31, 2015) (“The D.C. Circuit has made clear that, as far as
prudential exhaustion is concerned, . . . . courts may . . . excuse the otherwise applicable
exhaustion requirement ‘if delaying judicial review would cause irreparable injury, if the agency
is not competent to address the issue or to grant effective relief, or if further pursuit of an
administrative remedy would be futile.’” (quoting Ass’n of Flight Attendants–CWA v. Chao, 493
F.3d 155, 159 (D.C. Cir. 2007))).

17
 First, Plaintiffs argue that exhausting their administrative remedies would cause an

excessive delay. Pls.’ Opp’n at 38, ECF No. 13. However, they offer no support for their

assertion that “any Department administrative procedure would likely stretch out for years.” Pls.’

Opp’n at 38. Plaintiffs do refer to the “many years” that the Defendants “spent . . . taking

positions in the U.S. Court of Federal Claims against the MSIM,” Pls.’ Opp’n at 38—however,

the length of a different lawsuit bears no necessary relation to the length of an administrative

proceeding. Nor do they address the time required to complete the Department’s internal appeal

process versus the Part 83 procedure. Without any detailed explanation or support, the Court

cannot credit their bare statements that the delay introduced by exhausting administrating

remedies would render those remedies illusory. Nor do Plaintiffs explain why any delay would

work an “irreparable harm” against them. Pls.’ Opp’n at 38; cf. Ass’n of Flight Attendants-CWA,

493 F.3d at 159 (“[H]aving largely disregarded agency procedures the [plaintiffs] are in no

position to complain of agency delay.”).

Second, Plaintiffs attempt to argue that the Department lacks the capacity to recognize

them as a tribe. Pls.’ Opp’n at 38–39. However, the Court cannot agree with Plaintiffs’

suggestion that the Department lacks “institutional competence” to resolve questions of the status

of Indian tribes. See Pls.’ Opp’n at 38. The Department has indisputable expertise in determining

whether tribes meet the criteria for federal recognition, particularly through the Part 83 process.

See, e.g., James, 824 F.2d at 1138 (noting the Department’s “expertise in the area of tribal

recognition” including “two historians, two anthropologists, and two geneological [sic]

researchers,” which made it “apparent that the agency should be given the opportunity to apply

its expertise prior to judicial involvement”); N.J. Sand Hill Band of Lenape & Cherokee Indians

v. Corzine, No. 09-683, 2010 WL 2674565, at *9 (D.N.J. June 30, 2010) (“[W]eighty

18
considerations of institutional competence counsel this Court to defer to the BIA’s historical,

genealogical, and anthropological expertise before any adjudication on the merits would

otherwise be appropriate.” (collecting citations)).

Finally, Plaintiffs argue that they need not exhaust their administrative remedies because

the Department is biased against them, and any attempt to exhaust would therefore be futile. Pls.’

Opp’n at 39–40. As examples of the Department’s alleged bias, Plaintiffs cite the Department’s

involvement against the MSIM plaintiffs in Wolfchild. Pls.’ Opp’n at 39–40. Plaintiffs also

reiterate their substantive allegations from the complaint that the Department “with[e]ld the right

of consultation” and “mal-distribut[ed] $673,944 of MSIM trust funds.” Pls.’ Opp’n at 39–40.

However, these examples demonstrate at most that the Department is not presently treating

Plaintiffs as a tribe. They do not demonstrate that the Department has pre-determined Plaintiffs’

tribal status were that question actually placed before them—especially given that Plaintiffs’

application pursuant to the Part 83 process would be supported by record evidence. Cf. Ass’n of

Flight Attendants-CWA, 493 F.3d at 159 (“We will excuse exhaustion on grounds of futility

‘only when resort to administrative remedies is “clearly useless.”’” (quoting Boivin v. U.S.

Airways, Inc., 446 F.3d 148, 157 (D.C. Cir. 2006))). The case cited by Plaintiffs, Cherokee

Nation of Okla. v. Babbitt, 117 F.3d 1489 (D.C. Cir. 1997), did not involve exhaustion at all, but

rather whether the Department of the Interior could replace a tribe as a party for Rule 19

purposes. Because Plaintiffs have failed to show that their failure to exhaust administrative

remedies should be waived, the Court will grant Defendants summary judgment based on

19
Plaintiffs’ failure to exhaust their administrative remedies for the Department’s alleged refusal to

consult in 2016.20

B. Statute of Limitations

Defendants have also asserted that Plaintiffs’ claim falls beyond the applicable six-year

statute of limitations set by 28 U.S.C. § 2401(a). Defs.’ MTD at 11–13, ECF No. 10. The Court

briefly addresses this argument because of the jurisdictional nature of the statute of limitations,21

but, based on the evidence in the record, concludes that Plaintiff’s claim concerning a denial of

consultation regarding the PIIC constitutional amendments and land assignment in 2016 accrued

no earlier than 2016, and therefore is not time-barred.

20
Although it does not reach this issue, the Court notes some uncertainty concerning
whether Plaintiffs must exhaust both the Part 83 process and the § 2.8 process. If, as appears
likely from the Court’s research, federal recognition as a tribe is a prerequisite for the
consultation that Plaintiffs seek, then Plaintiffs would likely be required to exhaust the Part 83
process for the reasons described previously. If that process concludes against Plaintiffs, the
Court suspects that Plaintiffs could proceed to challenge that determination as a final agency
action without pursuing the § 2.8 process, which would then likely be futile.
21
The Court follows the explicit holding of the D.C. Circuit that “section 2401(a) creates
‘a jurisdictional condition attached to the government’s waiver of sovereign immunity.’” Hardin
v. Jackson, 625 F.3d 739, 740 n.1 (D.C. Cir. 2010) (quoting P & V Enters. v. U.S. Army Corps of
Eng’rs., 516 F.3d 1021 (D.C. Cir. 2008)). As Plaintiffs note, Pls.’ Opp’n at 24–26, the Supreme
Court in Kwai Fun Wong recently concluded that the Federal Tort Claims Act’s statute of
limitations, codified at 28 U.S.C. § 2401(b), was not jurisdictional. United States v. Kwai Fun
Wong, 135 S. Ct. 1625, 1633 (2015) (“Section 2401(b) is not a jurisdictional requirement. The
time limits in the FTCA are just time limits, nothing more. Even though they govern litigation
against the Government, a court can toll them on equitable grounds.”).
However, because the D.C. Circuit has not yet addressed the application of Kwai Fun
Wong to § 2401(a), this Court continues to follow the D.C. Circuit’s prior conclusion until the
D.C. Circuit addresses it in the first instance. See, e.g., Horvath v. Dodaro, 160 F. Supp. 3d 32,
43 n.9 (D.D.C. 2015) (“Nonetheless, because the D.C. Circuit Court of Appeals has explicitly
held that section 2401(a) is jurisdictional, see Spannaus, 824 F.2d at 52, and because the Supreme
Court’s holding in Wong is limited to the section 2401(b), Circuit precedent remains binding on
this Court[.]”); see also, e.g., Huffman v. Kelly, No. 16-861, 2017 WL 932949, at *5 (D.D.C.
Mar. 8, 2017); In re Chaplaincy, No. 1:07-269, 2016 WL 541126, at *3 (D.D.C. Feb. 9, 2016).

20
 Here, the general six year standard of limitations for suits against the United States

applies. Harris v. FAA, 353 F.3d 1006, 1009–10 (D.C. Cir. 2004) (citing 28 U.S.C. § 2401(a)

and Sendra Corp. v. Magaw, 111 F.3d 162, 165 (D.C. Cir. 1997))). As discussed previously, the

Court recognizes only a claim by Plaintiffs that Defendants failed to consult with them as a tribe.

Given the facts alleged before this Court—namely, that Plaintiffs requested consultation in 2016

concerning the proposed amendments to the PIIC constitution and land assignment system, but

were denied—Plaintiffs’ claim that they were denied consultation in 2016 accrued no earlier than

2016, and is therefore well within the six-year period. See Pls.’ Opp’n at 31 (“Once the MSIM

representatives contacted the Department in 2016 requesting consultation regarding the PIIC

constitutional amendments and the 30 acre land assignments at PIIC, the six year statute of

limitations began.”).

Defendants’ suggestion that the statute of limitations closed long ago because of one or

more of the decades-old events contained in Plaintiffs’ lengthy historical account, Defs.’ MTD at

11–13, ECF No. 10, is not persuasive in light of the narrow claim for consultation in 2016

identified by this Court. Defendants also argue that the statute of limitations would have begun to

run in 1979, when the list of federally recognized tribes was first published, because Plaintiffs

were then on notice that the Department did not recognize them. Defs.’ MTD at 12 n.13.

However, the Court lacks adequate information in the record to reach this question squarely.

Defendants have not presented evidence demonstrating that inclusion on the list of federally

recognized tribes is congruent with a tribe’s right to be consulted. Nor have Defendants shown

that Plaintiffs were ever informed that their requests for consultation—whether the 2016 request

or other requests—were denied because they did not appear on the list of federally recognized

tribes. In the absence of evidence on these points, the Court declines to dismiss Plaintiffs’ claims

21
on statute of limitations grounds. See McConnell v. Air Line Pilots’ Ass’n, Int’l, No. 08-1600,

2009 WL 765884, at *1 (D.D.C. Mar. 23, 2009) (“Courts are hesitant to grant a motion to

dismiss based on the statute of limitations unless the facts that give rise to the defense are clear

on the face of the complaint.” (citing Smith-Haynie v. District of Columbia, 155 F.3d 575, 577–78

(D.C. Cir. 1998))); see also Johnson v. Long Beach Mortg. Loan Tr. 2001-4, 451 F. Supp. 2d 16,

49 (D.D.C. 2006) (“Because, however, this Court cannot determine as a matter of law when

Plaintiff’s D.C. claims accrued, . . . Defendants’ Motions to Dismiss [on statute of limitations

grounds] shall be denied.”); Nwachukwu v. Karl, 223 F. Supp. 2d 60, 70 (D.D.C. 2002) (“The

plaintiff does not reference the date that the defendant terminated his legal relationship with the

plaintiff. . . . Thus, at this time, it is unclear whether the plaintiff’s causes of action are time-

barred and fit for dismissal. Accordingly, the court denies the defendant’s motion to dismiss.”).

Of course, the Court takes no position regarding the application of the statute of limitations to

any potential claims other than the single claim it has identified here, including any potential

claims by Plaintiffs that they were denied consultation on any other subject (whether in 2016 or

at another time).

IV. CONCLUSION

For the foregoing reasons, Defendants’ Motion to Dismiss (ECF No. 10), construed as a

motion for summary judgment, is GRANTED and Federal Defendants’ Request for Judicial

Notice (ECF No. 11) is GRANTED. An order consistent with this Memorandum Opinion is

separately and contemporaneously issued.

Dated: September 1, 2017 RUDOLPH CONTRERAS
United States District Judge

22