Mdewakanton Band of Sioux in Minn. v. Bernhardt
| Decision Date | 30 May 2020 |
| Docket Number | Civil Action No. 19-402 (TJK) |
| Parties | MDEWAKANTON BAND OF SIOUX IN MINNESOTA et al., Plaintiffs, v. David L. BERNHARDT et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Erick G. Kaardal, Mohrman, Kaardal, & Erickson, P.A., Minneapolis, MN, for Plaintiffs.
Sara E. Costello, U.S. Department of Justice, Washington, DC, for Defendants.
This is an action for a writ of mandamus requiring the Department of the Interior to list the Mdewakanton Band of Sioux in Minnesota as a federally recognized Indian tribe. Plaintiffs argue that the United States has already recognized the Mdewakanton Band through various treaties and congressional acts, and therefore, Interior is required to list it as federally recognized. Defendants have moved to dismiss, arguing, among other things, that the Mdewakanton Band has failed to exhaust administrative remedies. For that reason, as explained below, the Court will grant the motion.
Plaintiffs filed this suit in February 2019, seeking a writ of mandamus to require the Department of the Interior ("Interior") to list the Mdewakanton Band of Sioux in Minnesota (the "Mdewakanton Band") as a federally recognized Indian tribe. ECF No. 1 ("Compl."). According to the complaint, the individual plaintiffs, Terri Robertson-Torgerson, Ross Torgerson, and Ross Torgerson's unnamed minor child, are lineal descendants of members of the Mdewakanton Band who lived in Minnesota in the 1800s before the Civil War. Id. ¶¶ 11–20, 37–46. Plaintiffs allege that although the Mdewakanton Band has not completed Interior's administrative process to acknowledge its status, it is a federally recognized tribe, having attained that status through various nineteenth-century treaties and congressional acts, and therefore, Interior has violated the Federally Recognized Indian Tribe List Act of 1994 ("List Act") by failing to list it. Id. ¶¶ 155–209. In this lawsuit, they seek a writ of mandamus to correct that alleged error.
The complaint recounts the Mdewakanton Band's complicated history. The Mdewakanton Band were one of four tribes making up the Dakota Sioux, until the Dakota Sioux split into two separate entities, the upper tribes and the lower tribes. Id. ¶ 68. The Mdewakanton Band were part of the lower tribes. Id. From 1851 to 1858, the lower tribes and the United States entered into a series of peace treaties in which the tribes ceded or sold land to the United States in exchange for compensation or the creation of reservations. Id. ¶¶ 71–79. In each of these treaties, the Mdewakanton Band was recognized as a distinct entity capable of negotiating with the United States. See id. ¶¶ 71–74, 78–79, 80–82. In 1854, the Lake Pepin Reservation was also set aside for Dakota "mixed-bloods"—mainly Mdewakanton Band members. Id. ¶¶ 80–92. Plaintiffs allege that Thomas A. Robertson, ancestor of petitioners, was a holder of and eligible for scrip to the Lake Pepin Reservation. Id. ¶ 19.
In 1862, the United States and several Sioux tribes—including parts of the Mdewakanton Band—engaged in an armed conflict known as the Sioux Uprising. See DeCoteau v. Dist. Cty. Court for Tenth Judicial Dist. , 420 U.S. 425, 431, 95 S.Ct. 1082, 43 L.Ed.2d 300 (1975) ; Compl. ¶ 93. But some Sioux, including Robertson, did not participate in the uprising and instead helped rescue settlers who had been captured. Compl. at 3, ¶¶ 94–95. In February 1863, the United States abrogated parts of its treaties with the Sioux tribes that participated in the uprising but reaffirmed a promise of land for those who had helped rescue settlers. Id. ¶¶ 99–100; see Mdewakanton Sioux Indians of Minnesota v. Zinke , 264 F. Supp. 3d 116, 119–21 (D.D.C. 2017). The abrogation did not affect the Lake Pepin Reservation. Compl. ¶¶ 66, 104–05. In 1888, 1889, and 1890, Congress again set aside land for the Mdewakanton who did not participate in the uprising. Id. ¶¶ 138–43.
Plaintiffs allege that these acts only applied to individuals who had severed their tribal relations, such as other parts of the Mdewakanton that remained in Minnesota after the uprising, and not to their ancestors. Id. at 3, ¶¶ 52–53, 101, 138–43. They therefore assert that Robertson and his descendants, having never severed their tribal relations, retain federal recognition as an Indian tribe through pre-uprising treaties as well as the February 1863 Act. Id. ¶¶ 101, 107–08, 144–45. Under the List Act's stipulation that tribes "may be recognized by Act of Congress," Plaintiffs allege that the Mdewakanton Band is a federally recognized tribe, but Interior has simply not listed it as such. Id. ¶¶ 157–63; ECF No. 10 at 18–23.
Before filing this suit, the Mdewakanton Band allegedly submitted a petition under 25 C.F.R. § 83 "seeking reaffirmation" as an acknowledged tribe. Compl. ¶¶ 6, 200. That regulation, known simply as Part 83, was promulgated by Interior under the Indian Reorganization Act and sets out procedures for Indian groups to obtain formal recognition. Id. ¶ 149. Because 25 C.F.R. § 83.3 states that it "applies only to indigenous entities that are not federally recognized Indian tribes," Plaintiffs assert that Part 83 does not apply to them because they are recognized, just not listed—but that they still submitted a Part 83 petition out of an "abundance of caution." Id. ¶¶ 150–51, 200. Interior did not act on the petition. Id. ¶ 7. Plaintiffs allege that before receiving a response, Interior changed its regulations, disallowing applications for reaffirmation and leaving the Mdewakanton Band with no recourse because Part 83 does not apply to recognized tribes. Id. ¶¶ 8–9, 149–51, 168, 201, 207, 252. Plaintiffs seek a writ of mandamus requiring Interior to add the Mdewakanton Band to their list.1 They do not seek review of Interior's inaction on their 2014 petition under the Administrative Procedure Act (APA).
Defendants moved to dismiss the complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). ECF No. 8 at 1. They argue that (1) the decision to recognize Indian tribes is a non-justiciable political question; (2) the Court lacks jurisdiction because Plaintiffs’ petition is untimely; and (3) Plaintiffs failed to exhaust administrative remedies. See generally ECF No. 8. Plaintiffs oppose the motion. ECF No. 10. Plaintiffs also filed a motion for leave to file a surreply, claiming that Defendants raised a new argument in their reply brief. See ECF No. 13; ECF No. 12. Defendants oppose. ECF No. 14.
To survive a rule 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction, the plaintiff must prove by a preponderance of the evidence that the Court has jurisdiction. Lujan v. Defs. of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Because subject-matter jurisdiction concerns the Court's power to hear the claim, the Court must give the plaintiff's factual allegations closer scrutiny when resolving a motion to dismiss under Rule 12(b)(1) than one under Rule 12(b)(6). Macharia v. United States , 334 F.3d 61, 64 (D.C. Cir. 2003).
To survive a motion to dismiss under Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). The Court must "accept the well-pleaded factual allegations as true and draw all reasonable inferences from those allegations in the plaintiff's favor." Arpaio v. Obama , 797 F.3d 11, 19 (D.C. Cir. 2015). But "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.
Defendants argue that this Court lacks jurisdiction over Plaintiffs’ claim because "whether to recognize an Indian tribe is a political question to be addressed by the political branches of the government—not the judiciary." ECF No. 8-1 at 19; see Baker v. Carr , 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). "[A]pplication of the political question doctrine is a limited and narrow exception to federal court jurisdiction." Starr Int'l Co. v. United States , 910 F.3d 527, 533 (D.C. Cir. 2018). This case does not fall into that exception. Defendants concede that a final decision by Interior on a tribe's recognition is reviewable under the APA, a position at odds with the notion that the political question doctrine deprives the Court of jurisdiction over the matter.2 See ECF No. 8-1 at 20–21. And the D.C. Circuit has exercised its jurisdiction on several occasions to consider cases such as this one, and at no time has it hinted that the issue presented is subject to the political question doctrine. The Circuit has merely instructed, for example, that deference is warranted to the views of the political branches, see Cherokee Nation of Oklahoma. v. Babbitt , 117 F.3d 1489, 1496 (D.C. Cir. 1997), and that an administrative agency with a process to decide the matter should be allowed to do so in the first instance, see James v. U.S. Dep't of Health & Human Servs. , 824 F.2d 1132, 1137–38 (D.C. Cir. 1987) (). For these reasons, the political question doctrine does not bar Plaintiffs’ suit.3
Defendants also argue that the case should be dismissed under Rule 12(b)(6) because the Mdewakanton Band failed to exhaust its administrative remedies.4 ECF No. 8-1 at 14–18. Defendants claim that Plaintiffs failed to avail themselves of Interior's Part 83 process to gain federal...
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