Mdewakanton Band of Sioux in Minnesota v. Debra Haaland

                   United States Court of Appeals
                           FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 20-5173                                                  September Term, 2020
                                                             FILED ON: MAY 18, 2021




                          Appeal from the United States District Court
                                  for the District of Columbia
                                      (No. 1:19-cv-00402)

       Before: TATEL, MILLETT and PILLARD, Circuit Judges.


        The court considered this appeal on the record from the United States District Court and
the briefs of the parties. D.C. Cir. R. 34(j). The panel has accorded the issues full consideration
and has determined that they do not warrant a published opinion. See D.C. Cir. R. 36(d). It is

       ORDERED AND ADJUDGED that the judgment of the district court be AFFIRMED.

        Under the Federally Recognized Indian Tribe List Act of 1994, the Secretary of Interior
annually publishes a current list of recognized Indian tribes eligible for benefits and special
programs. 25 U.S.C. §§ 5130 et seq. Interior also runs an administrative process under 25 C.F.R.
Part 83 through which tribes may petition to be recognized and added to the list. In this case, two
individual appellants claiming to represent the Mdewakanton Band of Sioux in Minnesota seek a
writ of mandamus to require the Secretary to add the Band to her list. They did not file a Part 83
petition, which they argue would be inapposite because they allege that the United States already
recognizes the Band via nineteenth-century statutes and treaties.

       The district court dismissed the case under Rule 12(b)(6) for failure to exhaust
administrative remedies. Mdewakanton Band of Sioux in Minnesota v. Bernhardt, 

464 F. Supp.


3d 316, 321-23 (D.D.C. 2020). We have jurisdiction over the district court’s final order of
dismissal under 28 U.S.C. § 1291. We review the legal question whether Appellants were required
to exhaust administrative remedies de novo. Koch v. White, 

744 F.3d 162

, 164 (D.C. Cir. 2014).
We must affirm denial of mandamus unless Appellants’ complaint shows they have “a ‘clear and
indisputable’ right, and review by other means is not possible.” Mackinac Tribe v. Jewell, 

F.3d 754

, 758 (D.C. Cir. 2016) (citation omitted).

        The district court faithfully applied our precedent requiring any tribe claiming to be
federally recognized to file a Part 83 petition before it can obtain judicial review. In James v.
United States Department of Health & Human Services, we affirmed the district court’s dismissal
of a similar suit seeking to require Interior to add a tribe to its list. 

824 F.2d 1133

, 1139 (D.C. Cir.
1987). We held that principles of prudential exhaustion favored “requiring exhaustion of the
Department of the Interior’s procedures for tribal recognition, before permitting judicial

Id. at 1138.

In light of Interior’s significant expertise and experience in evaluating
recognition claims, we stressed that the exhaustion requirement (1) respects Congress’s choice to
delegate the decision to the agency, (2) protects agency autonomy, (3) aids judicial review by
allowing the agency to develop a record, and (4) promotes judicial economy.

Id. at 1137-38.

        We have followed James to require exhaustion under Part 83 even where tribes claimed
prior federal recognition. In Mackinac Tribe v. Jewell, for example, we rejected a tribe’s
contention that it need not exhaust because it had been recognized by federal treaties in the

century. 829 F.3d at 755

, 757. In Muwekma Ohlone Tribe v. Salazar, 

708 F.3d 209

213, 218-19 (D.C. Cir. 2013), we likewise required exhaustion despite the tribe’s evidence that the
Bureau of Indian Affairs had dealt with it as a tribe before 1927, see Muwekma Ohlone Tribe v.

813 F. Supp. 2d 170

, 176 (D.D.C. 2011).

        Whatever evidence a tribe may have that the federal government recognized it before
passage of the List Act, Part 83 exhaustion is procedurally required before the courts will evaluate
the claim. Appellants point out that James, Mackinac Tribe, and Muwekma involved prior tribal
recognition by treaty or agency action, whereas they root their claim in part in congressional
enactments. They note that Congress announced in enacting the List Act that “Indian tribes
presently may be recognized by Act of Congress” and that “a tribe which has been recognized in
[that] manner[] may not be terminated except by an Act of Congress.” Pub. L. No. 103-454, 108
Stat. 4791, § 103(3), (4) (1994). But the Act does not thereby empower a court to rely on evidence
of pre-Act congressional acknowledgement to mandate recognition of a tribe that has not
completed the Part 83 process. The List Act grants the Secretary a pivotal role in recognition
decisions, calling on her to “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.” 25 U.S.C. § 5131(a) (emphasis added).
Congressional actions receive great weight in the Secretary’s merits determinations. See 25 C.F.R.
§§ 83.11(e)(1), 83.12(a)(2). But Appellants’ claim presents complex historical questions of tribal
continuity akin to those in James, Mackinac Tribe, and Muwekma, and the same prudential
exhaustion rationales apply. See 

James, 824 F.2d at 1137-38

. Whatever the form of an unlisted
tribe’s pre-List Act evidence in support of recognition, the tribe must petition through Part 83
before seeking judicial review.

         Appellants also appear to claim that they are exempted from the exhaustion requirement
because administrative remedies would be inadequate and futile. See McCarthy v. Madigan, 

U.S. 140

, 146-48 (1992), superseded on other grounds by statute, Prison Litigation Reform Act of
1995, Pub. L. No. 104-134, 110 Stat. 1321-66 (1996), as recognized in Woodford v. Ngo, 

548 U.S.

, 84-85 (2006). They contend that the very grounds on which they claim recognition render
them ineligible for Part 83, which “applies only to indigenous entities that are not federally
recognized Indian tribes.” 25 C.F.R. § 83.3. But Part 83 defines a “federally recognized Indian
tribe” as “an entity listed on the Department of the Interior’s list under the Federally Recognized
Indian Tribe List Act of 1994.”

Id. § 83.1. Appellants

are not listed, so by its terms Part 83 applies
to them. Appellants insist that Interior has “predetermined the issue,” 

McCarthy, 503 U.S. at 148

whether they must petition through Part 83. Appellants’ Br. 19-20. But the issue potentially
excusing a failure to exhaust is whether Interior predetermined the tribe’s qualifications to be
listed, not the process for doing so, and Appellants make no claim that Interior has already decided
the merits of their listing claim.

        Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is
directed to withhold issuance of the mandate until seven days after resolution of any timely petition
for rehearing or rehearing en banc. See Fed. R. App. P. 41(b); D.C. Cir. R. 41.

                                            Per Curiam

                                                              FOR THE COURT:
                                                              Mark J. Langer, Clerk

                                                      BY:     /s/

                                                              Daniel J. Reidy
                                                              Deputy Clerk


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