James v. U.S. Dept. of Health and Human Services

• Decision Date: 24 July 1987
• Docket Number: No. 85-5920,85-5920
• Citation: 263 U.S. App. D.C. 152,824 F.2d 1132
• Parties: Frank B. JAMES, et al., Appellants, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1132

824 F.2d 1132

263 U.S.App.D.C. 152

Frank B. JAMES, et al., Appellants, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al.

No. 85-5920.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 9, 1986.

Decided July 24, 1987.

As Amended July 24, 1987.

William A. Hahn, with whom Robert C. Hahn, Boston, Mass., was on brief, for appellants.

Amelia S. Salzman, with whom Edward J. Shawaker, Dept. of Justice, Washington, D.C., was on brief, for appellees. Joseph E. diGenova, U.S. Atty., R. Craig Lawrence, John H. Palmer, Jr., and Royce C. Lamberth, Asst. U.S. Attys., Washington, D.C., also entered appearances for appellees.

Before WALD, Chief Judge, MIKVA, Circuit Judge, and LEIGHTON, ^* Senior District Judge.

Opinion for the Court filed by Senior District Judge LEIGHTON.

LEIGHTON, Senior District Judge:

This appeal presents two issues. First, whether the district court correctly dismissed appellants' suit against the United States Department of Health and Human Services after the court ruled that appellants did not have standing to sue on the claim alleged in their complaint. Second, whether the district court correctly dismissed appellants' suit against the United States Department of the Interior because they did not exhaust administrative remedies. We hold that appellants' claim against the Department of Health and Human Services is moot; therefore, we do not reach the issue whether the dismissal for lack of standing was correct. As to appellants' claim against the Department of the Interior, we conclude that the district court correctly rejected their request for an order that the Interior add the Gay Head Wampanoags to its list of federally recognized Indian tribes, because appellants failed to exhaust administrative remedies which may have obtained the relief sought. For these reasons we affirm the district court's dismissal order.

I

The Gay Head Indians of Martha's Vineyard, Massachusetts, are the descendants of the Gay Head Wampanoags who have inhabited the area since 1642. They have been commonly known as American Indians from historical times until the present. In 1822, under a presidential commission, Reverend Jedidiah Morse prepared a report on the actual state of Indian tribes. He discussed the Gay Headers; in a statistical table of all Indian tribes within the limits of the United States, he included the Martha's Vineyard Indians, the Wampanoags. In 1826, Colonel Thomas L. McKenney of the Office of Indian Affairs submitted a report to the Secretary of War listing the different tribes of Indians within the limits of the several states and territories. He listed the Martha's Vineyard Indians of Massachusetts, numbering some 340, who resided in their respective reservations. In May 1834, the United States House of Representatives Committee on Indian Affairs issued a report listing the Indians of New England, then numbering some 2,562, as among the tribes east of the Mississippi who had not agreed to be removed west of the river. Pursuant to a statute Congress enacted on March 3, 1847, Dr. Henry R. Schoolcraft prepared a report for the Bureau of Indian Affairs which was adopted. Among the tribes of the United States, he included the Gay Head Indians.

There is historical evidence that between 1827 and 1870, these Indians continued to maintain some tribal authority through concensus of a general council. They continuously petitioned the authorities in Massachusetts during this period. Commonwealth records disclose that between 1814 and 1862, Massachusetts acknowledged that the Gay Head Indians were essentially autonomous and self-governing. In the latter year, the Commonwealth imposed greater jurisdictional control over them by establishing Gay Head as an Indian District; full citizenship was extended to the Indians in 1869. In 1870, Massachusetts incorporated Gay Head as a township.

In November 1972, ten members of the Gay Head Tribe, including some of the appellants in this case, associated themselves with the intention of forming a corporation under the name of Wampanoag Tribal Council of Gay Head, Inc. ("the Tribal Council"). On January 10, 1973, the Secretary of the Commonwealth issued the group a charter for a not-for-profit corporation, one of the purposes of which was "to obtain Federal recognition for the Gay Head Indians." The group was led by Donald A. Widdiss, the tribal coordinator, and his wife, Gladys A. Widdiss, who became president of the corporation. In this case, they are known as the "Widdiss Group," dominated by the Widdiss Family and described by appellants "as the more 'establishment' oriented"; appellants are known as the "James Group," members of the Tribe who were "traditionalists." There exists between the two groups an intra-tribal struggle for leadership of the Gay Head Wampanoags.

On October 30, 1983, the governing body of the Tribal Council adopted a resolution authorizing officers of the corporation to apply for a grant from the Administration for Native Americans, a program operated by the Department of Health and Human Services under the Native Americans Program Act of 1974, 42 U.S.C. Sec. 2991 et seq. The purpose of the grant was to enable the Tribal Council to establish the identity of the Gay Head Indian peoples, that is, determining which individuals were descendants of the Tribe, where they were located, and information relevant to such determination. The application was approved and a grant of $75,000 was made to the corporation for a budget period from February 1, 1984 through January 1, 1985. This application was followed by one made by the Tribal Council to the Indian Health Service, a component of the Health Resources and Services Administration within the Department of Health and Human Services. This application resulted in an award of a $99,999 contract for the purpose of enabling the corporation (1) to perform a health assessment of all members of the tribal population in the immediate service area; (2) to make the tribal members, the contract staff, and local health care providers aware of the Indian Health Service benefits, as well as applicable rules, procedures and benefits; and (3) to begin development of a health management system to plan, organize, coordinate and evaluate health services delivery. The contract was granted under the Buy-Indian Act, 25 U.S.C. Sec. 47.

On October 12 and 24, 1984, two of the attorneys who represent appellants in these proceedings wrote to the Secretary of Health and Human Services, and to the responsible official of the Indian Health Service, protesting the two awards and demanding that funding be terminated. The grounds asserted were that the Tribal Council was not authorized to represent the Gay Head Indians, and had procured the awards through fraudulent representations. The demands for termination were later rejected by responsible officials of the department. On February 4, 1985, appellants, numbering some 50 members of the Gay Head Wampanoags, filed suit in this case against the Department of Health and Human Services. They alleged existence of the intra-tribal rivalry between them and the Widdiss Group which controlled the Tribal Council. Appellants alleged that the Widdiss Group had obtained, without authority and by fraudulent representations, the two Department of Health and Human Services awards. They prayed for a preliminary and permanent injunction against expenditure of the federal funds and for a declaratory judgment that refusal to terminate the awards to the Widdiss Group was arbitrary and capricious, a breach of the trust responsibility of the United States to American Indians and contrary to applicable law.

The department moved to dismiss on the ground that appellants lacked standing to assert the claims they alleged in their complaint. At about the same time, appellants moved for a preliminary injunction. The Widdiss Group, acting for the Tribal Council, made a motion to intervene in the suit. The district judge heard the parties, denied appellants' motion for preliminary injunction and took under advisement the department's motion to dismiss and the motion to intervene. During the hearing, the district judge expressed some reservation on the issue of federal recognition of the Gay Head Indian Tribe by the federal government. As a consequence, appellants filed an amendment to their complaint adding the Department of the Interior as a defendant and prayed that a declaratory judgment be entered holding that the Interior's failure to include the Gay Head Wampanoag Indian Tribe of Martha's Vineyard, Massachusetts, on its list of federally recognized Indian tribes was arbitrary, capricious, an abuse of discretion, a breach of the United States' trust responsibility to American Indians and contrary to applicable law. They also sought an order directing the Interior to place the Gay Heads on the list of recognized tribes.

The Department of the Interior appeared and moved to dismiss on the ground that appellants had failed to exhaust available administrative remedies. The department contended that because appellants had not applied for recognition under its published rules and regulations, they were not entitled to a judicial declaration that the Gay Head Wampanoag Tribe was federally recognized. On August 15, 1985, the district judge in an unpublished memorandum, granted the two motions to dismiss and held that the motion to intervene was moot. He ruled that appellants lacked standing to assert the claim they alleged against the Department of Health and Human Services and, with regard to their claim against the Department of the Interior, that they were not entitled to the relief sought because they had not exhausted available administrative remedies. This appeal followed.

II

Because of the passage of time since this suit was filed, a threshold question exists concerning whether appellant's request for declaratory and injunctive relief against the ...