Cherokee Nation of Oklahoma v. Norton, No. 03-5055 (Fed. 10th Cir. 2/16/2005)

• Decision Date: 16 February 2005
• Docket Number: No. 03-5055.,03-5055.
• Parties: CHEROKEE NATION OF OKLAHOMA, on behalf of all its members, Plaintiff-Appellant v. GALE NORTON, Secretary of the United States Department of the Interior; AURENE MARTIN, Acting Assistant Secretary of the United States Department of the Interior; and DELAWARE TRIBE OF INDIANS, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

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CHEROKEE NATION OF OKLAHOMA, on behalf of all its members, Plaintiff-Appellant v. GALE NORTON, Secretary of the United States Department of the Interior; AURENE MARTIN, Acting Assistant Secretary of the United States Department of the Interior; and DELAWARE TRIBE OF INDIANS, Defendants-Appellees.

No. 03-5055.

United States Court of Appeals, Tenth Circuit.

Filed February 16, 2005.

Appeal from the United States District Court for the Northern District of Oklahoma, (D.C. No. 98-CV-903-H).

Lloyd B. Miller of Sonosky, Chambers, Sachse, Miller & Munson, LLP, Anchorage, Alaska (Arthur Lazarus, Jr. and Melanie B. Osborne of Sonosky, Chambers, Sachse, Miller & Munson, LLP, Anchorage, Alaska; Julian K. Fite and John E. Parris of the Cherokee Nation Department of Justice, Tahlequah, Oklahoma, with him on the briefs) for Appellant Cherokee Nation of Oklahoma.

David C. Shilton of the United States Department of Justice, Washington D.C. (Katherine J. Barton, Attorney, United States Department of Justice, Washington, D.C., Kelly A. Johnson, Acting Assistant Attorney General, Washington D.C., Thomas L. Sansonetti, Assistant Attorney General, Washington D.C., David E. O'Meilia, United States Attorney, Tulsa, Oklahoma, Loretta Radford, Assistant United States Attorney, Tulsa, Oklahoma of the United States Department of Justice; Barbra N. Coen, of counsel, Office of the Solicitor, United States Department of the Interior, Washington D.C., with him on the briefs) for Federal Appellees.

Gina Carrigan-St.Clair of the Carrigan Law Offices, Tulsa, Oklahoma (Philip Baker-Shenk, Washington D.C., Wilda Wahpepah, Washington D.C., and Skip Durocher of Dorsey & Whitney LLP, Minneapolis, Minnesota, with her on the briefs) for Appellee Delaware Tribe of Indians.

Before SEYMOUR, BALDOCK and HARTZ, Circuit Judges.

ORDER

The matter is before the Court on the Federal Appellees' petition for panel rehearing. The Cherokee Nation has filed a response. Upon consideration of these pleadings, we grant the petition for the limited purpose of striking the sentence on page 25 of the original decision which states, "[a]ny action taken on the agency's 1996 final decision is void[]" and replacing it with the following sentence designated here in bold: "Any action taken by the agency on its 1996 final decision is void." The petition for rehearing is otherwise denied. An amended version of the court's opinion is attached to this order and shall stand as a substitute to the decision issued originally on November 16, 2004.

BALDOCK, Circuit Judge.

The Cherokee Nation of Oklahoma ("Cherokee Nation") and Delaware Tribe of Indians ("Delawares") entered into a contract pursuant to a treaty negotiated between the Cherokee Nation and the United States Government. The Supreme Court has twice interpreted that contract. We must decide in this case whether the Department of Interior's ("DOI") interpretation of that contract and concomitant decision to extend Federal recognition to the Delawares is contrary to the Supreme Court's reading of the same document.

I.

The law governing Federal recognition of an Indian tribe is, today, clear. The Federally Recognized Indian Tribe List Act of 1994 provides Indian tribes may be recognized by: (1) an "Act of Congress;" (2) "the administrative procedures set forth in part 83 of the Code of Federal Regulations[;]" or (3) "a decision of a United States court." Pub. L. No. 103-454, § 103(3), 108 Stat. 4791; see also United Tribe of Shawnee Indians v. United States, 253 F.3d 543, 547-48 (10th Cir. 2001). A recognized tribe is placed on the DOI's "list of recognized tribes[.]" 25 U.S.C. §§ 479a(3), 479a-1; 25 C.F.R. § 83.5(a).

The Delawares had never been on the list prior to this lawsuit. The Delawares began a quest for Federal recognition in 1992. They submitted a letter to the DOI expressing an intent to petition for Federal acknowledgment under the "Part 83 procedures." See 25 C.F.R. §§ 83.1, 83.4. The DOI informed the Delawares it would not consider their petition. The agency explained the "Delawares have not existed as an independent political identity since 1867, and have been absorbed into the Cherokee Nation of Oklahoma for general governmental purposes since that time." The Delawares, in response, requested instructions for filing an appeal. The DOI thereafter reaffirmed its position, but "clarified" its previous non-appealable advisory letter did not prevent the Delawares from petitioning under the Part 83 procedures.

The Delawares never formally petitioned for acknowledgment. Instead, they requested the DOI to "reconsider and retract" the agency's position, as expressed in a 1979 letter, that it would only engage in government-to-government relations with the Delawares through the Cherokee Nation. The agency conducted a "legal review" of the situation at the Delawares' behest. The DOI concluded the 1979 position should be retracted and published a "notice of intent" to do the same. See 61 Fed. Reg. 33,534-35 (June 27, 1996). The DOI elected not to follow the Part 83 procedures because they do not apply to "already acknowledged" tribes; and under the agency's new position, the Delawares had been acknowledged since 1867. See 25 C.F.R. § 83.3(b). The agency issued its final decision, after notice and comment, in September 1996. See 61 Fed. Reg. 50,862-63 (Sept. 27, 1996). The final decision declared "the Delaware Tribe of Indians is a tribal entity recognized and eligible for funding and services from the Bureau of Indian Affairs by virtue of its status as an Indian Tribe." Id. at 50,863.

On October 2, 1996, the Cherokee Nation sued the DOI. Cherokee Nation of Okla. v. Babbitt, 944 F. Supp. 974 (D.D.C. 1996). The Nation alleged the agency violated the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706, when it extended recognition to the Delawares. The district court, upon the DOI's motion, dismissed the suit because the Delawares were an indispensable party that could not be joined because of sovereign immunity. Cherokee Nation, 944 F. Supp. at 986. The D.C. Circuit reversed, holding the Delawares could not assert sovereign immunity because they relinquished their tribal sovereignty when they entered into an agreement with the Cherokee Nation in 1867. Cherokee Nation of Okla. v. Babbitt, 117 F.3d 1489, 1503 (D.C. Cir. 1997). The D.C. Circuit, however, limited its holding to the joinder issue and remanded the case for the district court to decide the "proper interpretation of the 1867 agreement with the Delaware Tribe[] as a party to the proceedings and in light of the full administrative record[.]"¹ Id. at 1503 n.15. On remand, the district court transferred the case to the Northern District of Oklahoma because it lacked personal jurisdiction over the Delawares.

There, the district court extended "great deference" to the DOI and concluded its retraction of the 1979 letter did not violate the APA. Cherokee Nation of Okla. v. Norton, 241 F. Supp. 2d 1368, 1373-74 (N.D. Okla. 2002). The court reasoned the Delawares were a federally recognized tribe prior to 1979 because (1) a claims statute appropriated funds to the "Delaware Tribe of Indians," and (2) "the Supreme Court explicitly and unambiguously declared that the Delaware Tribe of Indians was a federally recognized Indian tribe in Delaware Tribal Business Committee v. Weeks, 430 U.S. 73 (1977)." Id. at 1372-73. The court therefore did not consider the initial 1867 agreement entered into between the Cherokee Nation and Delawares. Id. at 1372.

The Cherokee Nation appeals. We have jurisdiction, 28 U.S.C. § 1291, and "afford no particular deference to the district court's review of [the] agency['s] action; our review of the administrative record pertaining to the challenged action is independent." Pennaco Energy Inc. v. United States Dep't of the Interior, 377 F.3d 1147, 1156 (10th Cir. 2004) (internal quotations and citation omitted). Because the DOI's final decision is contrary to Supreme Court precedent and the Federally Recognized Indian Tribe List Act, we reverse.

II.

The APA requires an agency to articulate a satisfactory explanation for its action. Kansas v. United States, 249 F.3d 1213, 1228-29 (10th Cir. 2001). Agency action must be upheld, if at all, on the basis the agency articulated. Federal Power Comm'n v. Texaco Inc., 417 U.S. 380, 397 (1974); Pennaco Energy Inc., 377 F.3d at 1157. An agency's action, on the other hand, may be set aside under the APA if it is arbitrary, capricious, an abuse of discretion, or contrary to law. 5 U.S.C. § 706(2)(A). "And the Act has been interpreted . . . to require agencies, on pain of being found to have acted arbitrarily and capriciously, to comply with their own regulations[.]" Miami Nation of Indians of Ind., Inc. v. United States Dep't of the Interior, 255 F.3d 342, 348 (7th Cir. 2001); Utahns for Better Transp. v. United States Dep't of Transp., 305 F.3d 1152, 1165 (10th Cir. 2002). Furthermore, although the APA's arbitrary and capricious standard is ordinarily a deferential one, see id. at 1164, such deference is not unfettered nor always due. See General Dynamics Land Sys. Inc. v. Cline, 540 U.S. 581, —, 124 S. Ct. 1236, 1248 (2004) (explaining no deference is owed to a clearly wrong agency interpretation); Adams Fruit Co., Inc. v. Barrett, 494 U.S. 638, 649-50 (1990) superceded by 29 U.S.C. § 1854 (explaining a precondition to agency deference is a congressional delegation of administrative authority); Watt v. Alaska, 451 U.S. 259, 273 (1981) (explaining an agency interpretation that conflicts with an earlier interpretation is entitled to considerably less deference than a consistently held position).

In this case, the DOI based its final decision on a "legal analysis of the pertinent treaties and agreements as well as a review of [its] administrative practice." 61 Fed. Reg. at 50,863. More specifically, the agency's recognition of the Delawares was based solely on its analysis of the...