Mdewakanton Sioux Indians of Minn. v. Zinke

Citation264 F.Supp.3d 116
Decision Date01 September 2017
Docket NumberCivil Action No.: 16–2323 (RC)
CourtU.S. District Court — District of Columbia
Parties MDEWAKANTON SIOUX INDIANS OF MINNESOTA, et al., Plaintiffs, v. Ryan ZINKE, Secretary, United States Department of the Interior, et al., Defendants.

Erick G. Kaardal, Mohrman, Kaardal, & Erickson, P.A., Minneapolis, MN, for Plaintiffs.

David Bernard Glazer, U.S. Department of Justice, San Francisco, CA, Jody Helen Schwarz, U.S. Department of Justice, ENRO Natural Resources Section, Washington, DC, for Defendants.



RUDOLPH CONTRERAS, United States District Judge


Plaintiffs seek to compel the Department of the Interior to consult with them as an Indian tribe. Defendants move to dismiss for, among other reasons, failure to exhaust administrative remedies and the statute of limitations. For the reasons discussed below, the Court converts Defendants' motion to a motion for summary judgment, and grants Defendants summary judgment because Plaintiffs have failed to exhaust their administrative remedies.


Plaintiffs consist of three individuals and the Mdewakanton Sioux Indians of Minnesota (MSIM), a group that Plaintiffs assert is an American Indian tribe acknowledged by the federal government. Compl. at 1–2, ECF No. 1. Plaintiffs bring suit against the Secretary of the United States Department of the Interior and the United States. Plaintiffs' expansive complaint seeks relief under the Administrative Procedure Act (APA). Compl. ¶¶ 231–40. In addition to their APA claims, Plaintiffs seek declaratory and injunctive relief regarding the same claims. Compl. ¶¶ 241–59.

Although Plaintiffs request relief in several areas, they center on the claim that, although Defendants are required to consult with all tribes, Defendants have refused to consult with Plaintiffs.3 See Compl. ¶ 236 (asserting that Defendants' "policies, practices, and customs" violate Plaintiffs' "rights and entitlements under federal law" because Defendants do not "consult[ ] directly with" Plaintiffs).

First, the Court summarizes Plaintiffs' description of the MSIM's history as a tribe. According to Plaintiffs, the MSIM were acknowledged by an act of Congress on February 16, 1863 (Act of 1863). That statute referred to the MSIM in the context of annulling several treaties, including a treaty with the MSIM. Act of Feb. 16, 1863, 12 Stat. 652 (1863) ("Whereas the United States heretofore became bound by treaty stipulations to the ... Medawakanton4 ... bands of the Dakota or Sioux Indians .... Be in enacted ... [t]hat all treaties heretofore made and entered into by the ... Medawakanton ... bands of Sioux or Dakota Indians ... with the United States, are hereby declared to be abrogated and annulled ....").5 Plaintiffs assert that, after being recognized by the federal government, the tribal status of the MSIM has never been terminated. Compl. ¶¶ 10–11. Plaintiffs define the current MSIM as "those American Indians and lineal descendants who remained or returned to Minnesota in or about 1863 whom Congress identified as a band of Indians as reflected in the Act of February 1863." Compl. ¶ 12. The individual plaintiffs argue that they are members of MSIM, Compl. ¶¶ 17–22, and they attach a list of several thousand other individuals who "self-identify" as MSIM, Compl. ¶ 24; ECF No. 1–1, Ex. A.

Plaintiffs do not dispute that the MSIM is not "recognized" by the Secretary of the Interior or included on the list of Indian tribes published by the Secretary pursuant to 25 U.S.C. § 5130(2)et seq. See, e.g. , Compl. ¶¶ 246–50. However, Plaintiffs assert that they have been "acknowledged" by the Secretary in the past—although the Secretary currently refuses to acknowledge them—and this status is sufficient for the relief they seek. Compl. ¶¶ 243, 245, 257. Plaintiffs argue that, because they are an acknowledged tribe, Defendants are required to consult with them, Compl. ¶ 236, and the refusal to consult is equivalent to "termination of the MSIM without a termination statute in violation of the [APA]." Compl. ¶¶ 236–37, 251.

Plaintiffs' description of the injuries Defendants have inflicted upon them is lengthy and wide-ranging. After wrestling with Plaintiffs' complaint, cf. infra Part III, the Court understands their claim to focus on Defendants' alleged refusal to consult with Plaintiffs concerning proposed constitutional amendments to the constitution of the Prairie Island Indian Community and changes to the land assignment system at Prairie Island. However, Plaintiffs also provide, apparently in way of context, references to various other events that they do not specifically tie to a cause of action.

First, the Court summarizes Plaintiffs' allegations concerning consultation on the proposed changes at Prairie Island. See, e.g. , Compl. ¶ 125 (arguing that Defendants are required to "consult[ ] directly with [MSIM] regarding all matters affecting the [MSIM] and its rights vis-à-vis [PIICSM] and the other communities"); see also Compl. ¶¶ 167–69 ("The MSIM in this lawsuit pursues two different land claims .... [first,] for federal land assignments for MSIM at Prairie Island ....").

This claim requires a brief detour into the history of the lands and MSIM members at Prairie Island. The federal government purchased land at Prairie Island6 in accordance with the 18881890 Appropriations Acts—and, according to Plaintiffs, this land was purchased on behalf of the MSIM. Compl. ¶¶ 14, 34; see also Pls.' Surreply Mem. (Pls.' Surreply), ECF No. 22 at 5. After the lands were purchased, the Secretary of the Interior assigned lands to some, but not all, MSIM members (because insufficient land was available) and thus only some of the MSIM members lived on the purchased lands. Compl. ¶¶ 35–37. Later, those MSIM members living on the purchased lands organized into the Prairie Island Indian Community in the State of Minnesota (PIICSM) in accordance with the Indian Reorganization Act of 1934. Compl. ¶¶ 39–40. PIICSM was organized in the non-tribal form of Indians residing on a reservation.7 Compl. ¶ 44.

According to Plaintiffs, those MSIM members who lived in the organized communities severed their tribal relations, but those without land assignments did not. Compl. ¶¶ 38, 40, 43. The entity at Prairie Island also organized into a corporation, the Prairie Island Indian Community (PIIC). Compl. ¶ 104. Plaintiffs assert that there is a difference between PIICSM, the federally recognized community, and PIIC, the corporation.8 See Compl. ¶¶ 106–14. In 1980, a federal statute was passed which Plaintiffs assert "placed the parcels at Prairie Island in trust for the [PIIC]" but "preserved the property rights of the MSIM assignees." Compl. ¶¶ 104–05; Act of Dec. 1980, Pub L. 9–557, 94 Stat. 3262. According to Plaintiffs, this beneficial interest was limited to PIIC, the corporation, rather than PIICSM. Compl. ¶ 106; ¶¶ 87–117. In 1996 the Prairie Island community requested that the corporate charter of PIIC be revoked, and Congress acceded. Compl. ¶¶ 109–11. Plaintiffs therefore argue that, because of that revocation, PIICSM (the federally-recognized entity) has no beneficial interest over the lands at Prairie Island, Compl. ¶ 114, and the beneficial interest has reverted to the MSIM, Compl. ¶ 115. In particular, Plaintiffs appear to believe that they are entitled to a particular parcel of the land at Prairie Island. See Compl. ¶ 115 ("6096 Whipple Way now belongs to the [MSIM] generally—and should be assigned to the Plaintiff representatives specifically.").

Against this backdrop, Plaintiffs argue that recent proposed changes to the PIICSM constitution will, among other injuries, injure their rights to the lands at Prairie Island. PIICSM, the federally-recognized entity, has a constitution. Compl. ¶ 44; see also Prairie Island Indian Community Constitution, ECF No. 1–1, Ex. E. According to Plaintiffs, the constitution includes references to the PIICSM as part of the larger group of the MSIM and provides for an annual MSIM conference. Compl. ¶¶ 45, 59, 61–62. Recently, the PIICSM has sought to amend its constitution through the Department's Secretarial election process. Plaintiffs object that the proposed amendments "eliminate all references to the MSIM and its rights," Compl. ¶ 123, and "appear to be a federal effort to ‘officially’ terminate the [MSIM] without a Congressional Act," Compl. ¶ 142. See Compl. ¶ 129 (listing Plaintiffs' objections to the proposed revisions). Plaintiffs also appear to view the proposed constitutional amendments as related to their alleged loss of rights under the land assignment system. See Compl. ¶¶ 77–80 (complaining that Defendants did not consult Plaintiffs about the "termination of the federal land assignment system and the annual meetings" under the proposed constitutional amendments). For these reasons, Plaintiffs argue that the proposed amendments violate their rights.9 Compl. ¶ 123.

Finally, the Court reaches the kernel of Plaintiffs' complaint. Plaintiffs argue that they have requested that the Department consult with them concerning the proposed constitutional amendments and changes to the land assignment system, but that the Department has refused to do so in violation of the APA. See Compl. ¶ 80 (in relation to the proposed constitutional amendments for the Prairie Island Indian Community, Plaintiffs complain that "the Department of the Interior does not consult with the [MSIM] about the termination of their rights, including the termination of the federal land assignment system and the annual meetings for the [MSIM]"); see also Pls.' Mem. Opp'n Fed. Defs.' Mot. Dismiss (Pls.' Opp'n) at 31, ECF No. 13 ("MSIM representatives contacted the Department in 2016 requesting consultation regarding the PIIC constitutional...

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