Burt Lake Band of Ottawa and Chippewa Indians v. Zinke

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
BURT LAKE BAND OF )
OTTAWA AND CHIPPEWA INDIANS, )
)
Plaintiff, )
)
v. ) Civil Action No. 17-0038 (ABJ)
)
DAVID BERNHARDT, et al., )
)
Defendants. )
____________________________________)

MEMORANDUM OPINION

Plaintiff Burt Lake Band of Ottawa and Chippewa Indians (“the Band”) is an Indian

Tribe that has sought federal recognition since at least 1935. It has brought this action against

the Secretary of the Department of the Interior (the “Department”), David Bernhardt, 1 and the

Assistant Secretary for Indian Affairs for the Department of the Interior, Tara Sweeny, under the

Administrative Procedure Act (“APA”), 5 U.S.C. § 500 et seq., and the Due Process and Equal

Protection Clauses of the Fifth Amendment of the Constitution. See generally Amended

Complaint [Dkt. # 11] (“Am. Compl.”).

In 2015, the Department initiated a rule making procedure to consider making changes to

its Part 83 regulation, which sets forth the procedures through which Tribes can gain federal

recognition. The Department ultimately decided against an amendment that would have allowed

Tribes who were denied recognition under the pre-2015 procedures an opportunity to re-petition

in limited circumstances, and this lawsuit challenges that decision. See Am. Compl.

1 David Bernhardt, who succeeded Ryan Zinke as Secretary of the Interior, is substituted as
defendant pursuant to Federal Rule of Civil Procedure 25(d).
 On July 14, 2017, defendants moved to dismiss all six counts in the amended complaint.

After plaintiff voluntarily dismissed one count, the Court granted defendants’ motion to dismiss

in part, and denied it in part. See Mem. Op. [Dkt. # 20].

Plaintiff has now moved for summary judgment on the remaining claims, Counts IV, V,

and VI of the complaint. Pl.’s Mot. for Summ. J. [Dkt. # 27]; Pl.’s Mem. of P. & A. in Supp. of

Pl.’s Mot. for Summ. J. [Dkt. # 27-1] (“Pl.’s Mem.”). Defendants opposed that motion and filed

a cross-motion for summary judgment. Defs.’ Cross-Mot. for Summ. J. [Dkt. # 29]; Defs.’

Mem. of P. & A. in Supp. of Defs.’ Cross-Mot. for Summ J. [Dkt. # 29] (“Defs.’ Cross-Mem.”).

The matter is fully briefed, see Pl.’s Opp. to Defs.’ Cross-Mot. & Reply in Supp. of Pl.’s Mot.

for Summ J. [Dkt. # 32] (“Pl.’s Reply”), and Defs.’ Reply in Supp. of Cross-Mot. [Dkt. # 34]

(“Defs.’ Cross-Reply”). A Joint Appendix of the Administrative Record was filed on the docket

on March 28, 2019. Admin. Record [Dkt. # 35].2

Upon full review of the record, the Court finds that the agency’s decision was arbitrary

and capricious, and it will grant plaintiff’s motion for summary judgment on the APA claim

(Count IV) and remand the matter to the agency. Under those circumstances, it is unnecessary to

reach the constitutional claims (Counts V and VI).

2 The Court notes that plaintiff also filed a Notice of Supplemental Authority [Dkt. # 38]
on January 27, 2020, directing the Court to Chinook Indian Nation v. Bernhardt., 2020 WL
128563 (W.D. Wa. Jan. 10, 2020), a recent case that addresses similar issues to those presented
in the instant matter. The Court has read that decision and finds it to be well-reasoned and
persuasive.
2
 BACKGROUND

I. Statutory Background 3

The history of tribal recognition in the United States is as complicated as it is long. Only

the small portion of that history that is relevant to this case will be set out here.

In 1934, Congress codified its treatment of Indian Tribes for the first time by enacting the

Indian Recognition Act (“IRA”). 25 U.S.C. § 479. The IRA defined the term “Indian” to

“include all persons of Indian descent who are members of any recognized Indian tribe now

under Federal jurisdiction.” Id. After passing the IRA, recognition of Tribes by the federal

government took place in an ad hoc manner, with the Bureau of Indian Affairs (“BIA”), part of

the Department of Interior, receiving and reviewing petitions on a case-by-case basis. See

Mackinac Tribe v. Jewell, 829 F.3d 754, 756 (D.C. Cir. 2016), citing Muwekma Ohlone Tribe v.

Salazar, 708 F.3d 209, 211 (D.C. Cir. 2013).

In 1978, the Department promulgated a formal procedure for recognizing Indian Tribes,

called the Part 83 process. See generally 25 C.F.R. § 83 et seq. “The Part 83 process is

‘intended to apply to groups which can establish a substantially continuous tribal existence and

which have functioned as autonomous entities throughout history until the present.’” Muwekma,

708 F.3d at 211, quoting 25 C.F.R. § 83.3(a). To be recognized, petitioners must satisfy seven

criteria by submitting thorough explanations and supporting documentation. See 25 C.F.R.

§ 83.11.

The Part 83 regulations have been amended twice, once in 1994 and again in 2015. The

1994 version was the first to deny previously-denied Tribes any opportunity to re-petition the

Department for recognition. See 25 C.F.R. § 83.3(f) (1994). In 2014, the Department proposed

3 A more in-depth review of the history of the Part 83 regulation is undertaken in Section
II.A infra.
3
a second round of amendments, including a provision that would allow some previously-denied

Tribes to re-petition under a limited set of circumstances. See Fed. Acknowledgment of Am.

Indian Tribes, 79 Fed. Reg. at 30767 (proposed May 29, 2014) (“Proposed Rule”). In 2015, after

an extensive notice and comment period, the Department published the Final Rule, Federal

Acknowledgment of American Indian Tribes, 80 Fed. Reg at 37862 (July 1, 2015) (“Final Rule”)

which contained, among other changes, revised criteria for tribal recognition. See, e.g., id.

at 37863, 37870, 37872. But the 2015 Final Rule did not include the proposed provision

allowing for limited re-petitioning. Id. at 37875.

II. Factual Background

In 1935, the Burt Lake Band’s ancestors first petitioned the Bureau of Indian Affairs to

be recognized under the Indian Recognition Act of 1934. Pl.’s Mem. at 14. The Department

never issued a final decision on that petition. Pl.’s Mem. at 14. On September 6, 1985, the Band

applied for federal recognition under the Part 83 Process. Pl.’s Mem. at 15. It took twenty years

for the agency to rule, and the BIA rejected the Band’s petition in 2006. See Final Determination

for the Burt Lake Band of Ottawa and Chippewa Indians, Inc., 71 Fed. Reg. 57995

(Oct. 2, 2006).

This case does not challenge the unconscionable delay or the denial of that petition – the

date to do so has long since passed. Instead, this case challenges the agency’s rulemaking in

2014–2015, specifically the agency’s decision not to include the proposed re-petitioning

provision in its Final Rule.

STANDARD OF REVIEW

Summary judgment is appropriate when the pleadings and evidence show that “there

is no genuine dispute as to any material fact and [that] the movant is entitled to judgment

4
as a matter of law.” Fed. R. Civ. P. 56(a). In cases arising under the Administrative

Procedure Act, though, the agency’s role is to resolve factual issues and arrive at a decision

that is supported by the administrative record, and the court’s role is to “determine whether or

not as a matter of law the evidence in the administrative record permitted the agency to

make the decision it did.” Occidental Eng’g Co. v. INS, 753 F.2d 766, 769–70 (9th Cir.

1985), citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971); see

also Richards v. INS, 554 F.2d 1173, 1177 n.28 (D.C. Cir. 1977).

ANALYSIS

Under the APA, a court must “hold unlawful and set aside agency action, findings, and

conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law,” 5 U.S.C. § 706(2)(A), in excess of statutory authority, id. § 706(2)(C), or

“without observance of procedure required by law,” id. § 706(2)(D). However, the scope of

review is narrow. See Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins.

Co., 463 U.S. 29, 43 (1983). The agency’s decision is presumed to be valid, see Citizens to

Preserve Overton Park, 401 U.S. at 415, and the court must not “substitute its judgment for that

of the agency.” State Farm, 463 U.S. at 43. A court must be satisfied, though, that the

agency has examined the relevant data and articulated a satisfactory explanation for its action,

“including a rational connection between the facts found and the choice made.” Alpharma,

Inc. v. Leavitt, 460 F.3d 1, 6 (D.C. Cir. 2006) (citations omitted) (internal quotation marks

omitted).

In reviewing an agency’s interpretation of a statute, courts use the two-step analysis

outlined in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467

U.S. 837, 842-43 (1984). Step one involves determining whether Congress has spoken

5
directly to the precise question at issue. If it has, “the court, as well as the agency, must give

effect to the unambiguously expressed intent of Congress,” and that is the end of the matter.

Id.; Nat’l Treasury Emps. Union v. Fed. Labor Relations Auth., 392 F.3d 498, 500 (D.C.

Cir. 2004). If the statute is silent or ambiguous on the question, Chevron instructs the Court to

go on to a second step and determine “whether the agency’s answer is based on a permissible

construction of the statute.” 467 U.S. at 843. An agency’s interpretation will warrant

deference if it is reasonable. Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 702 (1991).

Plaintiff contends that the ban on re-petitioning in the Final Rule is a violation of the

APA for two reasons. First, it argues that the agency exceeded its statutory authority by

promulgating a rule that forecloses the possibility of re-petitioning. Pl.’s Mem. at 28. Second, it

maintains that even if the agency acted within the scope of its authority, the Rule is arbitrary and

capricious because the Department: failed to consider important aspects of the problem,

including fairness concerns regarding previously-denied Tribes’ rights to re-petition under the

new criteria; promulgated a rule that “runs counter to the evidence before the agency;” and relied

on impermissible factors by basing its decision on “efficiency” and “workload” concerns. Pl.’s

Mem. at 34–36.

The Court finds that while the Department acted within its authority when it promulgated

the updated Part 83 regulation, including the ban on re-petitioning, the record does not support

the agency’s limited justifications for the ban, and so it is arbitrary and capricious.

I. The Department did not act outside its statutory authority by maintaining the
prohibition on re-petitioning in the Final Rule.

Plaintiff contends that the agency’s “decision to ban all previously-denied groups from

re-petitioning under the revised Part 83 process exceeds its statutory authority” for two reasons:

because the Department has never been delegated the authority to ban re-petitioning, Pl.’s Mem.

6
at 28–32l Pl.’s Reply at 1, and because the agency’s decision to maintain the ban “squarely

contradicts the intent of Congress.” Pl.’s Reply at 1. The agency contends that its ban on

repetitioning falls within its broad authority over Indian matters, and that it “goes hand-in-hand”

with its authority to determine which Indian groups to recognize as Indian Tribes. Defs.’ Cross-

Mem. at 17–23; Defs.’s Cross-Reply at 3.

A. The Chevron Analysis

The D.C. Circuit has explained:

Under the first step of Chevron, the reviewing court “must first exhaust
the traditional tools of statutory construction to determine whether
Congress has spoken to the precise question at issue.” The traditional tools
include examination of the statute’s text, legislative history, and structure,
as well as its purpose.

Bell Atl. Tel. Cos. v. FCC, 131 F.3d 1044, 1047 (D.C. Cir. 1997), quoting Nat. Res. Def.

Council v. Browner, 57 F.3d 1122, 1125 (D.C. Cir. 1995).

The court is required to utilize these methods to determine whether Congress has

“unambiguously foreclosed the agency’s statutory interpretation.” Catawba Cty. v. EPA, 571

F.3d 20, 35 (D.C. Cir. 2009).

Congress may have done so in one of two ways: either by prescribing a
precise course of conduct other than the one chosen by the agency, or by
granting the agency a range of interpretive discretion that the agency has
clearly exceeded . . . . And if the agency has either violated Congress’s
precise instructions or exceeded the statute’s clear boundaries then, as
Chevron puts it, ‘that is the end of the matter’ – the agency’s interpretation
is unlawful.

Vill. of Barrington v. Surface Transp. Bd., 636 F.3d 650, 659–60 (D.C. Cir. 2011).

The burden is on a plaintiff challenging the agency interpretation to “do more than offer a

reasonable or, even the best, interpretation” of the statute; plaintiff must instead show “that the

7
statute unambiguously forecloses the [agency’s] interpretation.” Vill. of Barrington, 636 F.3d at

661. In other words, if a court determines “that statutory ambiguity has left the agency with a

range of possibilities and that the agency’s interpretation falls within that range, then the agency

will have survived Chevron step one.” Vill. of Barrington, 636 F.3d at 660.

B. Congress has delegated broad authority to the Secretary of the Interior to
promulgate regulations concerning the acknowledgment of Indian Tribes,
including the authority to regulate how Tribes may be recognized.

Congress has consistently granted the Secretary of Interior authority over Indian matters

under 43 U.S.C. § 1457. It states that the “Secretary of the Interior is charged with the

supervision of public business relating to . . . Indians.” Id. And Under 25 U.S.C. § 2, the

Commissioner of Indian Affairs, who operates under the direction of the Secretary of Interior, is

charged with “the management of all Indian affairs and of all matters arising out of Indian

relations.”

The 2015 Final Rule includes a one-paragraph section titled “legislative authority,” which

invokes all of these statutes. 80 Fed. Reg. 37885. According to defendants, the Final Rule was

issued in accordance with the Secretary’s authority to recognize the existence of an Indian Tribe,

Defs.’ Cross-Mem. at 17, and his general statutory authority under 25 U.S.C. §§ 2 and 9 to

authorize the agency to promulgate regulations concerning the process for acknowledging

Tribes. Defs.’ Cross-Reply at 3, citing Miami Nation of Indians of Ind., Inc. v. Babbitt, 887 F.

Supp. 1158, 1163 (N.D. Ind. 1995). Since the re-petitioning rule is part and parcel of the

acknowledgment process, and the Secretary has authority over the “management of all Indian

8
affairs,” defendants contend that the re-petitioning rule falls squarely within its authority. Defs.’

Cross-Mem. at 3. 4

Plaintiff concedes that defendants have the authority to determine which Indian groups

can be recognized as Tribes: “Congress has clearly provided [the Department] and BIA with the

authority to create and implement a Part 83 process.” Pl.’s Reply at 8. Although this authority

allows the agency “to determine how to acknowledge or deny Indian groups,” Pl.’s Reply at 8

(emphasis in original), plaintiff insists that the re-petitioning ban does not fall within the scope of

that authority because it “squarely contradicts Congressional intent,” Pl.’s Reply. at 13, and

“BIA can cite no authority which explicitly grants it the authority to prohibit a Tribe from

petitioning for recognition or re-petitioning when its initial submission was deemed inadequate.”

Pl.’s Mem. at 28. According to plaintiff, the laws that empower the Secretary are “clearly and

unambiguously intended to benefit and protect Indian peoples and Tribes,” so a provision that

disadvantages them exceeds the scope of the agency’s authority. Pl.’s Reply at 14, citing 25

U.S.C. § 5302 (Indian Self-Determination and Education Assistance Act (“ISDEAA”); 25 U.S.C.

§ 13 (Snyder Act); 25 U.S.C. § 185; 25 U.S.C. § 305(a); 25 U.S.C. § 2000.

Plaintiff notes that “[e]ven the Preamble to the revised Part 83 regulations that DOI

implemented in 2015 state that they were made ‘for the benefit of Indian tribes.’” Pl.’s Reply at

15, quoting 25 C.F.R. § 83.2. Since, according to plaintiff, the unifying goal of these statutes is

to promote self-determination, and federal recognition is central to achieving self-determination,

“the draconian decision to adopt an absolute prohibition on re-petitioning under any

4 In support of its position, defendants also cite 25 U.S.C. § 5131, which provides that the
“Secretary shall publish in the Federal Register a list of all Indian Tribes which the Secretary
recognizes to be eligible for the special programs and services provided by the United States to
Indians because of their status as Indians.”

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circumstances” is “contrary to Congressional policy,” and therefore in excess of the

Department’s statutory authority. Pl.’s Reply at 16.

The Court finds that Section 83(d) falls well within the Department’s authority, including

in particular, “the management of all Indian affairs and all matters arising of Indian relations.”

25 U.S.C. § 2 (emphasis added). Thus, the Rule does not fail at Chevron step one, and it is based

on a reasonable construction of the statutory language for purposes of Chevron step two. This

conclusion is consistent with binding Circuit precedent, which holds that the Department’s

power to recognize encompasses the power to create regulations to establish the manner through

which that is accomplished. See, e.g., James v. U.S. Dep’t of Health and Human Servs., 842

F.2d 1132, 1138 (D.C. Cir. 1987) (“Congress has specifically authorized the Executive Branch to

prescribe regulations concerning Indian affairs and relations. Regulations establishing

procedures for federal recognition . . . certainly come within the area of Indian affairs and

relations.”).

Furthermore, plaintiff’s contention that the ban runs “contrary to Congress’s stated policy

and the purpose of the regulations,” to help establish “a meaningful Indian self-determination

policy,” Pl.’s Mem. at 31, and the Rule’s commitment to “implement Federal statutes for the

benefit of Indian Tribes,” Pl.’s Mem. at 32 (quoting 25 C.F.R. § 83.2), is undermined by the fact

that a re-petitioning ban has been in place since the 1994 amendments without any Congressional

intervention. See 25 C.F.R. § 83.3(f) (1994). Since the regulation comports with the agency’s

10
authority, the Court must go on to consider whether it is supported by the record, 5 and this is

where the Department fell short. 6

II. The Final Rule banning re-petition was arbitrary and capricious.

In conducting arbitrary and capricious review of a challenged action, the court is obliged

to defer to the agency. See Nat’l Ass’n of Clean Air Agencies v. EPA, 489 F.3d 1221, 1228 (D.C.

Cir. 2007). As the D.C. Circuit has explained, agency action will be upheld if the agency “has

considered the relevant factors and articulated a ‘rational connection between the facts found and

the choice made.’” Id., quoting Allied Local & Reg’l Mfrs. Caucus v. EPA, 215 F.3d 61, 68

(D.C. Cir. 2000). The review is “[h]ighly deferential” and “presumes the validity of agency

action.” Id., citing AT&T Corp. v. FCC, 349 F.3d 692, 698 (D.C. Cir. 2003).

This is not to say, however, that courts are expected to rubber stamp agency decisions.

Natural Res. Def. Council, Inc., v. Daley, 209 F.3d 747, 755 (D.C. Cir. 2000). Courts need not

5 The Court does not need to analyze the other statutes plaintiff points to throughout Title
25 of the United States Code, because they are not the basis for defendants’ statutory authority
for promulgating the specific regulation being challenged in this case, and the statutes are only
applicable to federally recognized Tribes. For example, Plaintiff argues that, “[c]ongressional
policy intended to benefit and protect Indians is not limited to federally recognized Tribes,” and
it cites to the Indian Self-Determination and Education Assistance Act of 1975 (“ISDEAA”) in
support of its position. Pl.’s Reply at 15. However, the ISDEAA only defines “Indian” for the
purposes of the statute as “a person who is a member of an Indian Tribe” and defining an “Indian
Tribe” as any “Indian Tribe, band, nation, or other organized group or community . . . which is
recognized as eligible for the special programs and services provided by the United States to
Indians because of their status as Indians.” 25 U.S.C. § 5304(e).
The Court is also not called upon to decide whether the challenged regulation is
beneficial or harmful to Indian groups, but instead whether the agency provided any reasonable
interpretation of its implicit authority to promulgate the regulation under the enabling statutes.
Since the agency agency’s interpretation is reasonable, the Court finds that defendants did not act
in excess of their statutory authority.

6 The Chinook Indian Nation court reached the same conclusion, holding that “[i]f section
2 and 9 empower DOI to regulate the recognition process . . . it follows that DOI may also place
limitations on that process. A contrary conclusion would have no rational endpoint and tie
DOI’s hands when regulating federal recognition.” 2020 WL 128563, at *6.
11
defer to “conclusory or unsupported suppositions.” United Techs. Corp. v. U.S. Dep’t of Def.,

601 F.3d 557, 562 (D.C. Cir. 2010), quoting McDonnell Douglas Corp. v. U.S. Dep’t of the Air

Force, 375 F.3d 1182, 1187 (D.C. Cir. 2004). The Court’s job is “to evaluate the rationality of

[the agency’s] decision.” Mississippi v. EPA, 744 F.3d 1334, 1348 (D.C. Cir. 2013). It must be

satisfied that the agency has examined the relevant data and articulated a satisfactory explanation

for its action, “including a ‘rational connection between the facts found and the choice made.’”

Alpharma, Inc. v. Leavitt, 460 F.3d 1, 6 (D.C. Cir. 2006), quoting State Farm, 463 U.S. at 43.

Post hoc rationalizations for agency action may not be accepted by the Court. State Farm, 463

U.S. at 50; Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962). Thus, when an

agency “‘has failed to provide a reasoned explanation, or where the record belies the agency’s

conclusion, [the court] must undo its action.’” City of Los Angeles v. Shalala, 192 F.3d 1005,

1021 (D.C. Cir. 1999), quoting Bellsouth Corp. v. FCC, 162 F.3d 1215, 1222 (D.C. Cir. 1999).

A. History of the Final Rule

1. The Proposed Rule

On May 29, 2014, the BIA published a public notice of a proposed rule to revise the

regulations governing the federal recognition of Indian Tribes under 25 C.F.R. § 83, based on its

acknowledgment that the process was widely “criticized as ‘broken.’” Fed. Acknowledgment of

Am. Indian Tribes, 79 Fed. Reg. 30766 (proposed May 29, 2014) (“Proposed Rule”). The

agency summarized the purpose of the Proposed Rule as follows:

The revisions seek to make the process and criteria more transparent,
promote consistent implementation, and increase timeliness and
efficiency, while maintaining the integrity of the process. The current
process has been criticized as ‘‘broken’’ or in need of reform.
Specifically, the process has been criticized as too slow (a petition can
take decades to be decided), expensive, burdensome, inefficient, intrusive,
less than transparent and unpredictable.

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 The proposed rule would reform the process by, among other things,
institutionalizing a phased review that allows for faster decisions; reducing
the documentary burden; allowing for a hearing on the proposed finding to
promote transparency and process integrity; establishing the Assistant
Secretary’s final determination as final for the Department to promote
efficiency; and establishing objective standards, where appropriate, to
ensure transparency and predictability.
Id.

One of the provisions in the proposal would have allowed Tribes that had been previously

denied recognition to re-petition the agency for recognition under limited circumstances. Id.

Since 1994, groups that were denied federal acknowledgment under the regulations were

prohibited from repetitioning. Procedures for Establishing That an Indian Group Exists as an

Indian Tribe, 59 Fed. Reg. at 9285 (Feb. 25, 1994). The Proposed Rule “would allow, in very

limited circumstances, a petitioner previously denied under the regulations to re-petition under

the revised rules.” 79 Fed. Reg. 30767. As the agency explained:

If a third party individual or entity has participated in an [Interior Board of
Indian Appeals] or Secretarial reconsideration or an Administrative
Procedure Act appeal in Federal court and ultimately prevailed, the denied
petitioner may seek to re-petition only with the consent of the individual
or organization. If the individual or organization consents, or a third party
did not participate in a reconsideration or appeal, an OHA judge will
determine whether the changes to the regulations warrant a
reconsideration of that particular final determination or whether the wrong
standard of proof was applied to the final determination. This
determination will be made based on whether the petitioner proves, by a
preponderance of the evidence, that re-petitioning is appropriate. Because
the changes to the regulations are generally intended to provide uniformity
based on previous decisions, re-petitioning would be appropriate only in
those limited circumstances where changes to the regulations would likely
change the previous final determination.

79 Fed. Reg. at 30766. The agency went on:

Having an OHA judge review re-petitioning requests promotes
consistency, integrity, and transparency in resolving re-petition requests.
Requiring third-party consent recognizes the equitable interests of third
parties that expended sometimes significant resources to participate in the
adjudication and have since developed reliance interests in the outcome of

13
 such adjudication. Having weighed these equity considerations, the
Department has determined that the proposed rule must acknowledge
these third-party interests in adjudicated decisions.
Id.

Applying these principles, the Proposed Rule read as follows:

(1) A petitioner may re-petition only if:

(i) Any third parties that participated as a party in an administrative
reconsideration or Federal Court appeal concerning the petitioner
has consented in writing to the re-petitioning; and

(ii) The petitioner proves, by a preponderance of the evidence, that
either:

(A) A change from the previous version of the regulations
to the current version of the regulations warrants
reconsideration of the final determination; or

(B) The ‘‘reasonable likelihood’’ standard was misapplied
in the final determination.

79 Fed. Reg. at 30774.

The Proposed Rule required that the request to re-petition be presented to the Office of

Hearings and Appeals. The OHA judge could request evidence and hold hearings and his or her

decision whether to allow re-petitioning would be a final action of the Department under the

Administrative Procedure Act, 5 U.S.C. § 704. See Id.

In sum, under the Proposed Rule, a petitioner would need the consent of any third party

that participated in the reconsideration or appeal of the prior decision, and it would need to show

“by a preponderance of the evidence, that either: (1) changes to the regulations warrant a

reconsideration of the final determination; or (2) the wrong standard of proof was applied to the

final determination.” Department of Interior, Comparison Chart: Current Federal

Acknowledgment Rule vs. Proposed Federal Acknowledgment Rule, May 22, 2014, JA593 at

14
AR0005593. 7 The agency believed this “approach promot[ed] consistency and transparency in

resolving re-petition requests and recognizes third-party interests in adjudicated decisions.” Id.

It was understood that the Proposed Rule entailed some significant changes. On the day

the agency issued its notice of proposed rulemaking, it circulated a news release with the

headline, “Interior Proposes Reform of Federal Acknowledgment Regulations: Proposed rule

would address ‘broken’ process.” JA587–88 at AR0005528–29. The agency stated, “[w]hile the

1978 regulations established a structured process for federal acknowledgment, these regulations

have been widely criticized as being too time-consuming, sometimes arbitrary and generally

“’broken.’” JA587 at AR0005528. It noted that of the 566 federally recognized Tribes, only

seventeen had have been recognized through the Part 83 process; “far more Tribes have been

through Congressional action.” JA588 at AR0005529. Then-assistant Secretary Washburn

acknowledged, “[r]eform of the process is long-overdue.” JA587 at AR0005528.

The press releases went on to summarize the objectives of the Proposed Rule:

Key features of the proposed rule would promote transparency by
updating the Part 83 criteria to include objective standards; promote
efficiency by requiring a petitioner to show community and political
influence/authority from 1934 to the present rather than from as early as
1789; and eliminate the need for a petitioner to demonstrate that third
parties identified the petitioner as a Tribe from 1900 to the present. The
propose rule would make changes to the petitioning process that facilitate
the timely issuance of proposed finding and final determinations. It would
also allow an administrative judge to conduct a comprehensive hearing
and review of a negative proposed finding.

JA588 at AR0005529.

2. Comments on the Proposed Rule

After the Proposed Rule was published on May 29, 2014, see 79 Fed. Reg. 30766, the

Department received comments. The two-month comment period was scheduled to conclude on

7 Citations to the Administrative Record will refer to the documents in the Joint Appendix
(“JA”) and the Bates numbers appearing in the bottom right of each page, beginning with “AR.”
15
August 1, 2014, 80 Fed. Reg. 37864, but the Department extended the period until September 30,

2014 in response to requests. Id. During that time, the Department received more than 330

written submissions and it held public meetings with federally recognized Indian Tribes around

the country. Id.

Some of the comments “suggested different approaches to re-petitioning, allowing re-

petitioning in only certain circumstances,” including, if “[a] substantial number of years passes

and there is significant new evidence; there is a showing of some modification of evidence . . .

the petitioner exhausted their administrative and appellate remedies; or third parties involved in a

prior proceeding are granted special standing.” 80 Fed. Reg. 37875.

One comment, issued by “professors and scholars of American Indian law and policy,”

noted that although some administrative decisions are given preclusive effect similar to the

common law doctrines of collateral estoppel and res judicata, “preclusion should not be granted

because it would frustrate federal purposes in having a just and rational acknowledgment process

and because the revised standards are significantly different.” Letter from Professors and

Scholars of American Indian Law, September 30, 2014, JA303 at AR0001894.

Several Tribes commented in support of the Proposed Rule because the changes would

provide greater clarity, flexibility, and better reflect the realities of tribal existence. See, e.g.,

Letter from Chief Brian Buchanan, Miami Nation of Indians, September 30, 2014, JA 311–16 at

AR0002964–69 (“Miami Nation Letter”); Letter from the Duwamish Tribe of Seattle,

Washington, September 25, 2014, JA317–20 at AR0002995–98 (“Duwamish Tribe Letter”).

Those Tribes and others, as well as additional commenters applauded the idea of a re-petitioning

opportunity but opposed the suggested requirement of third-party participation. See, e.g., Miami

Tribe Letter, JA314 at AR0002967; Duwamish Tribe Letter, JA318–19 at AR0002996; Steven

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L. Austin, Ph.D, Comments on the 2014 Proposed Rule for Title 25 Code of Federal Regulations

Part 83, JA274–78 at AR0001858–62. The Duwamish Tribe, wrote, for example, that the new

provision allowing for some re-petitioning “makes good sense because – as the revised

regulations anticipate – some Tribes that were previously denied recognition might now qualify.”

Duwamish Tribe Letter, JA318 at AR0002996; see also, Letter from Professors and Scholars of

American Indian Law and Policy, September 30, 2014, JA 302–05 at AR0001893–96;

Comments on the Proposed Hearing and Re-Petitioning Authorization Process Concerning

Acknowledgment of American Indian Tribes from the Indian Legal Clinic at Arizona State

University, September 30, 2014, JA006–07 at AR0000008–09.

3. The Final Rule

On July 1, 2015, the agency published its Final Rule, declining to adopt the provision it

had originally proposed. See generally 80 Fed. Reg. 37862–95. The agency’s entire explanation

for excluding the re-petitioning provision was set forth in a single paragraph:

The proposed rule would have provided for a limited opportunity for re-
petitioning. After reviewing the comments both in support of and in
opposition to allowing for any opportunity for re-petitioning, limiting re-
petitioning by providing for third-party input, and other suggested
approaches for re-petitioning, the Department has determined that
allowing re-petitioning is not appropriate. The final rule promotes
consistency, expressly providing that evidence or methodology that was
sufficient to satisfy any particular criterion in a previous positive decision
on that criterion will be sufficient to satisfy the criterion for a present
petitioner. The Department has petitions pending that have never been
reviewed. Allowing for re-petitioning by denied petitioners would be
unfair to petitioners who have not yet had a review, and would hinder the
goals of increasing efficiency and timeliness by imposing the additional
workload associated with re-petitions on the Department, and OFA in
particular. The Part 83 process is not currently an avenue for re-
petitioning.

80 Fed Reg. at 37875. Like the court in Chinook Indian Nation, 2020 WL 128563, at *8, this

Court finds that this is not an explanation that justifies the choice the agency made.

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 B. The ban on re-petitioning is arbitrary and capricious.

1. The record does not support the agency’s goal of promoting
consistency.

The agency asserted first that eliminating the proposed re-petitioning provision was in

accordance with the stated purposes of the Final Rule: to “promote[] consistency,” and it pointed

out that the Rule expressly provided that “evidence or methodology that was sufficient to satisfy

any particular criterion in a previous positive decision on that criterion would be sufficient to

satisfy the criterion for a present petitioner.” 80 Fed. Reg. at 37875. Defendants maintain in

their summary judgment pleadings that the Final Rule serves this goal “because the 2015 Final

Rule did not substantially change the standards for acknowledgment;” its aim was to “provide for

consistent results between petitions,” Defs.’ Cross-Mem. at 20–21, and “mak[e] any re-petition

inherently unnecessary.” Id.

But this justification is inadequate for several reasons. First of all, the notion that

evidence that was sufficient for a tribe that was granted recognition in the past will still be

sufficient under the new regime does not have anything to do with whether the Department

should reconsider a tribe that was denied recognition in the past. This is particularly true

because the reason the agency proposed the Final Rule was because the old system was, as the

agency admitted, “broken” and, contrary to defendants’ assertions, the changes it implemented

were significant.

The agency’s insistence that the Final Rule ushered in no substantive changes is belied by

its own description of the amendments it implemented. The Rule itself states: “The rule does

not substantively change the Part 83 criteria, except in two instances.” 80 Fed. Reg. 37863

(emphasis added). These changes include: 1) allowing the agency to “accept any and all

evidence” of the petitioner’s identification as an Indian entity, including allowing a petitioning

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Tribe to use its own contemporaneous records to prove its existence as an Indian entity since

1900, and 2) expanding the definition for what counts as a Tribal marriage (to include non-

petitioner marriages) for purposes of meeting the “community” criteria. 80 Fed. Reg. at 37863.

These are not minor changes.

Indeed, the reforms were so substantial that the agency issued policy guidance on the

same day the Final Rule was adopted, declaring the Part 83 process to be the sole means of

granting tribal recognition, and discontinuing the use of other administrative processes.

Having worked hard to make the Part 83 process more transparent, timely
and efficient, while maintaining Part 83’s fairness, rigor, and integrity, the
Department has decided that, in light of these reforms to improve the Part
83 process, that process should be the only method utilized by the
Department to acknowledge an Indian Tribe in the contiguous 48 states.

80 Fed. Reg. at 37539.

The agency reasoned:

Of course, the basis for the policy shift being announced today is the
Department’s reform and improvement of the Part 83 process. The
recently revised Part 83 regulations promote fairness, integrity, efficiency
and flexibility. No group should be denied access to other mechanisms if
the only administrative avenue available to them is widely considered
“broken.” Thus, this policy guidance is contingent on the Department’s
ability to implement Part 83, as reformed.

Id. The Department did not equivocate when it reiterated that the purpose of the reforms was to

address the “broken” nature of the pre-2015 process – the process under which plaintiff was

denied recognition. One cannot square the promise that “[n]o group should be denied access to

other mechanisms if the only administrative avenue available to them is widely considered

‘broken’” with depriving Tribes that were denied recognition under the old system of any

opportunity to re-petition and to seek to satisfy the new criterion. Indeed, one cannot reconcile

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the agency’s repetition of the word “reform” with the agency’s breezy assurance in the pleadings

in this case that nothing has changed. 8

Finally, as plaintiff points out, the Department’s explanation “only accounts for a

situation where a previously-denied petitioner applies again with the same evidence.” Pl.’s

Reply at 26 (emphasis in original). The explanation also failed to acknowledge that the

Department implemented a new “consistent baseline approach,” through which an applicant can

reference a previous petitioner’s success at satisfying a criterion as a baseline for the new

applicant’s attempt to meet the criterion with similar evidence. Pl.’s Reply at 27. Since the

baseline approach was incorporated specifically because previously-denied petitioners were

treated inconsistently before 2015, plaintiff persuasively contends that the only way for

previously-denied petitioners to get “fair” and “consistent” results would be by allowing them to

re-petition. Pl.’s Reply at 28–30.

For all of these reasons, the Court finds, and it agrees completely with the conclusion of

the district judge in Chinook Indian Nation, that the decision to eliminate any right to re-petition

will frustrate, and not advance, the stated goal of achieving consistency, and therefore, the choice

reflected in the Final Rule is not rationally connected to the reasons proffered by the agency. See

2020 WL 128563, at *8 (“As the Proposed Rule recognized, banning re-petitions undermines the

goal of applying DOI’s standards consistently to all petitioners.”).

2. The Rule’s ban on re-petitioning is not rationally related to the
agency’s goal of promoting fairness.

The Department’s second justification for eliminating the proposed re-petitioning

provision from the 2015 Final Rule was that “[a]llowing for re-petitioning by denied petitioners

8 Merriam-Webster defines “reform” as: “1) amendment of what is defective, vicious,
corrupt, or depraved; 2) removal or correction of errors of an abuse or wrong.” Reform,
Merriam-Webster.com Dictionary, available at
https://www.merriam-webster.com/dictionary/reform.
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would be unfair to petitioners who have not yet had a review.” 80 Fed. Reg. at 37875.

Defendants repeat this conclusory assertion, with more force, in their brief:

A major impetus for the 2015 Final Rule was reducing the length of time
between filing a petition and reaching a decision. Without question,
adding re-petitioners to the waiting list would increase the time for new
petitions to be heard, defeating one of the aims of the 2015 Final Rule.
The Department thus reasonably decided not to change the re-petitioning
ban from the 1994 regulations.

Defs.’ Cross-Mem. at 20.

But the record is devoid of any evidence to support the Department’s rationale. It does

not provide statistics to show how many new petitions remain outstanding, 9 how many Tribes

would be able to re-apply under the limited proposed exception, or why one should assume that

first-time petitioners would be pushed to the back of the line behind re-petitioners. Plaintiff

correctly notes in its reply that merely adopting a rule permitting re-petitioning does not dictate

the order in which petitions would be reviewed, Pl.’s Reply at 21, and there is no evidence in the

record suggesting that any pending petition would be adversely affected by a re-petition. And

defendants’ post hoc rationalization that re-petitioning would increase the wait time for new

petitions to be heard was not mentioned in the record and cannot be relied on now. State Farm,

463 U.S. at 50; Burlington Truck Lines, 371 U.S. at 168. Moreover, as the district court judge in

Chinook Indian Nation stated, “[i]f DOI was concerned about pending petitions, it would have

been simple to give them priority.” 2020 WL 128563 at *9.

Because it is a “fundamental requirement of administrative law . . . that an agency ‘set

forth its reasons’ for [a] decision,” Tourus Records, Inc. v. DEA, 259 F.3d 731, 737 (D.C.

9 According to plaintiff, “only three petitions are currently pending and seven groups will
‘become petitioners when they supplement their petitions.’” Pl.’s Reply at 22, quoting Office of
Fed. Acknowledgment, Petitions in Process, https://www.bia.gov/as-ia/ofa/petitions-process.

21
Cir. 2001), the Department’s reliance on an unsupported rationale that permitting re-petitioning

would be unfair to new petitioners fails to meet this requirement.

3. The record does not support the Department’s statement that
permitting re-petitioning would overburden the Department,
and the Office of Federal Acknowledgment in particular.

The agency’s final explanation for its decision to exclude the re-petitioning provision

from the 2015 Final Rule is that allowing re-petitioning “would hinder the goals of increasing

efficiency and timeliness by imposing the additional workload associated with the re-petitions on

the Department, and [the Office of Federal Acknowledgment (“OFA”)] in particular.” 80 Fed.

Reg. at 37875.

The Court finds again that there is nothing in the administrative record to support this

rationale. There is no statistical information in the administrative record concerning the number

of Tribes that have been previously denied that are likely to re-petition or what percentage of the

anticipated caseload that would turn out to be. Nor is there any estimate of how long a re-

petition decision would take given the Proposed Rule’s requirement that re-petitioners would

only be able to submit new materials to the agency. See 79 Fed. Reg. at 30774.

Second, the Final Rule’s claimed concern about increasing the burdens on OFA makes

little sense since the Proposed Rule assigned the Office of Hearings and Appeals – and not OFA

– the responsibility to hold hearings, receive pleadings, request evidence, and make

determinations concerning re-petitioning. 79 Fed. Reg. at 30774. See Chinook Indian Nation,

2020 WL 128563, at *9.

In their summary judgment pleadings, defendants argue that the Department’s concern

was not only with its own workload, but “also with that of petitioning groups.” Defs.’ Cross-

Reply at 12. They point the Court to the portion of the Final Rule “estimating that the ‘annual

burden hours’ for entities petitioning for federal acknowledgment will decrease by a minimum of
22
approximately 6,390 hours under the 2015 regulations.” Defs.’ Cross-Reply at 12, quoting 80

Fed. Reg. 37886. They conclude that “[i]n order to effectuate the goals of increasing efficiency,

reducing burdens, and streamlining the Part 83 process for both petitioners and the Department

alike, the Department reasonably determined that in light of the myriad of existing procedural

and appellate safeguards for petitioners, re-petitioning should continue to be prohibited.” Defs.’

Cross-Reply at 13.

But the Department’s condescending suggestion that it is eliminating any right to re-

petition to reduce the burden on petitioners does not merit serious consideration, and it appears

to be made out of whole cloth since the agency did not advance that justification in the Final

Rule.

In sum, the Court finds that the Department’s ban on re-petitioning in the updated Part 83

regulation is neither well-reasoned nor rationally connected to the facts in the record. For that

reason, the ban will be vacated as arbitrary and capricious and the matter will be remanded to the

Department of the Interior. Because the Court will grant summary judgment for plaintiff under

the APA and remand the challenged rule to the agency for further consideration, it need not

reach the constitutional arguments. See U.S. v. Wells Fargo Bank, 485 U.S. 351, 354 (1998)

(directing that a court shall “resolve statutory questions at the outset where to do so might

obviate the need to consider a constitutional issue”); Burton v. United States, 196 U.S. 283, 295

(1905) (“It is not the habit of the court to decide questions of a constitutional nature unless

absolutely necessary to a decision of the case.”); Heller v. Dist. of Columbia, 670

F.3d 1244, 1250 (D.C. Cir. 2011).

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 CONCLUSION

For the foregoing reasons, plaintiff’s motion is GRANTED with respect to Count VI and

defendants’ motion is DENIED with respect to that Count. The Court declines to reach a

determination of plaintiff’s constitutional claims at this time. The re-petitioning ban is remanded

to the agency for further consideration or action in accordance with this order.

SO ORDERED.

AMY BERMAN JACKSON
United States District Judge

DATE: March 25, 2020

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