UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
JULIA CAVAZOS, et al., Plaintiffs, v. Civil Action No. 20-2942 (CKK) DEBRA HAALAND, et al., Defendants.
MEMORANDUM OPINION (January 10, 2022)
This administrative law case centers on a U.S. Department of the Interior’s (“Interior”)
decision (“AS-IA Decision”), after an informal adjudication, to decline to intervene in tribal
disenrollment proceedings by the Saginaw Chippewa Indian Tribe of Michigan (“Tribe”).
Plaintiffs are former members of the Tribe who have since been disenrolled by Tribal leadership.
Plaintiffs charge that a federal statute particular to the Tribe, the Judgment Funds Act, PL 99-
346, 100 Stat. 674 (1986) (“JFA”), required Interior to intervene in and put a stop to Tribal
disenrollment proceedings. In their only claim before the Court, Plaintiffs argue that Interior’s
inaction was arbitrary and/or capricious within the meaning of the Administrative Procedures
Act, 5 U.S.C. §§ 500 et seq. (“APA”). As a remedy, Plaintiffs seek not just a remand back to the
agency, but an order from this Court mandating Interior’s intervention to reverse the Tribe’s
disenrollment proceedings.
In support thereof, Plaintiffs focus primarily on statutory provisions in the JFA governing
(1) antidiscrimination against tribal members enrolled after the JFA’s enactment and (2)
Interior’s supervision of the JFA. Ultimately, the Court agrees with Interior 1 that the plain
1 The U.S. Department of the Interior is not, itself, a defendant in this action. The Federal Defendants are: (1) Debra Haaland, in her official capacity as United States Secretary of the Interior; (2) Bryan 1 meaning of the JFA: (1) does not classify disenrollment as discrimination and (2) grants Interior
broad discretion to intervene in Tribal disputes related to the JFA. However, the Court holds that
Interior incorrectly read the JFA to bar discrimination only against enrolled members of the
Tribe. Because the JFA also bars the Tribe from discriminating against disenrolled members in
access to benefits and services funded by the JFA, the Court shall remand the matter to Interior
to reconsider whether it should exercise its discretionary authority to intervene in the alleged
inequitable provision of such benefits and services. Accordingly, upon consideration of the
pleadings, 2 the relevant legal authorities, and the entire record, the Court GRANTS IN PART
AND DENIES IN PART Federal Defendants’ [29] Cross-Motion for Summary Judgment,
GRANTS IN PART AND DENIES IN PART Intervenor’s [26] Cross-Motion for Summary
Judgment, and GRANTS IN PART AND DENIES IN PART Plaintiffs’ [21] Motion for
Summary Judgment.
Newland, in his official capacity as Assistant Secretary for Indian Affairs; and (3) Darryl Lacounte, in his official capacity as Director of the Bureau of Indian Affairs. Additionally, the Tribe has intervened as Intervenor-Defendant. 2 The Court’s analysis has focused on the following documents: • Plaintiffs’ Motion for Summary Judgment (“Pls.’ Mot.”), ECF No. 21; • Federal Defendants’ Cross-Mot for Summary Judgment and Opposition to Plaintiff’s Motion for Summary Judgment (“Defs.’ Cross-Mot”), ECF No. 29; • Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motions for Summary Judgment and in Further Support of Plaintiffs’ Motion for Summary Judgment (“Pls.’ Repl.”) • Reply Brief of Intervenor-Defendant (“Tribe Br.”), ECF No. 38; and • Federal Defendants’ Reply in Support of their Cross-Motion for Summary Judgment (“Defs.’ Repl.”), ECF No. 39. The Court did not find consideration of Plaintiffs’ [46] Surreply necessary or helpful in the resolution of this matter. In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of assistance in rendering a decision. See LCvR 7(f). 2 I. BACKGROUND
A. Factual and Statutory Background
The heart of this case is a dispute over tribal disenrollment, i.e., who qualifies as a
member of the Tribe. Although the Tribe is one legal entity today, historically it was a collection
of many tribes throughout what is now the State of Michigan. AR-000710-11. Like many other
tribes, these tribes agreed to cede much of their land to the United States during the early part of
the 19th century. AR-0001845. A reservation system followed, and the federal government set
out to allot several plots of land to individual Tribal members and the Tribe itself during the latter
part of the 19th century. Id. To assist in the distribution of property, the federal government
prepared “allotment rolls,” listing, at various times, distinct but mostly overlapping counts of
Tribal members. See AR-001301-05. This effort was mostly unsuccessful, however, and “the
federal government largely mishandled, or ignored, its part of the bargain” to distribute
reservation lands in accordance with its legal obligations. See Saginaw Chippewa Indian Tribe
of Mich. v. Granholm, 690 F. Supp. 2d 622, 628 (E.D. Mich. 2010).
After the Tribe’s federal recognition in 1934, the disaster in reservation allotment created,
in essence, two classes of Tribal members. Although the Tribe’s draft constitution classified as
members “[a]ll persons of Indian blood belonging to” to the tribal forebears of the Tribe, AR-
001310, the federal government insisted that the Tribe’s constitution instead extend membership
only to those who resided on reservation lands, AR-001312. From 1937 onwards, this change in
tribal membership has divided those lineal and collateral descendants.
The 1973 Indian Judgment Funds Distribution Act, codified at 25 U.S.C. § 1403,
provided non-reservation Tribal descendants an opportunity to lobby the federal government for
assistance in Tribal recognition and membership. This statute further effected four money
3 judgments issued in favor of the Tribe’s tribal forbears as compensation for historical land theft
by the federal government. See AR-000710. In 1976, the Bureau of Indian Affairs (“BIA”) and
Congress elected to equally distribute on a per capita basis one of those judgments to all
descendants of the Tribes, regardless of whether they were enrolled members of the tribe. AR-
000713-14, 722. Before the distribution of the three remaining judgments, the Tribe lobbied
Congress to prevent the funds’ distribution to unenrolled tribal descendants. AR-000572.
Initially, the Tribe’s lobbying efforts were successful. In 1984, one Michigan Senator
introduced a bill to name the Tribe as the sole beneficiary of the undistributed funds. AR-
000725. BIA again opposed this effort and recommended to Congress that the unenrolled
descendants receive an equitable portion of those funds. AR-000830-31. The BIA was silent,
however, on whether unenrolled descendants should be enrolled in the Tribe. Congress instead
struck a compromise––conditioning the release of the remaining funds on the Tribe adopting “a
constitutional provision or ordinance which would enable a person who meets the existing . . .
blood quantum for membership to become an enrolled member of the tribe” regardless of
reservation residency. S. Rep. No. 98-609, AR000881-82 (Sept. 18, 1984).
That compromise is expressed in the legislation Congress ultimately passed, the JFA. For
present purposes, there are three key provisions of the JFA: (1) the Enrollment Provision, (2)
the Nondiscrimination Provision, and (3) the Enforcement Provision. The Enrollment Provision
works across two statutory sections. First, in section 5, it conditions the release of funds upon a
constitutional amendment permitting the enrollment of collateral descendants:
The Secretary [of the Interior] shall transfer the funds . . . after the date on which the Secretary receives written notice of the adoption by the Tribal Council . . . if the amendments to the constitution of the [T]ribe referred to in section 4(a) are adopted and ratified[.]
4 JFA § 5(a). Next, section 4(a) defines that amendment as “any amendments to the constitution of
the [T]ribe which were approved by the Tribal Council on April 15, 1985, in resolution L and O-
03-85.” Although that amendment does not appear to be in the administrative record before this
Court, the parties evidently agree that resolution L and O-03-85 broadened tribal membership
from lineal (predominantly resident) descendants to
[a]ll descendants of person[s] whose names appear on any [allotment rolls] who are at least one-quarter degree [Tribal] blood born prior to or within one year of the effective date of approval of this Amended Constitution by the Secretary of the Interior, provided that such descendants duly apply for membership within the Saginaw Chippewa Indian Tribe of Michigan within 18 months of the effective date of the amended Constitution.
Constitution of the Saginaw Chippewa Indian Tribe of Michigan § 1(d), AR-00098. Altogether,
the Enrollment Provision conditions the release of funds upon the adoption of this provision.
The Nondiscrimination Provision bars the tribe from discriminating against Tribal
members enrolled pursuant to section 1(d) in the provision of Tribal benefits and services funded
by the proceeds of the money judgments.
(a) Any distribution or expenditure of the Investment Fund [created with funds], and any program or activity fund, in whole or in part, by the principal or income of the Investment fund, shall not discriminate against–– (1) Individuals who become members of the tribe after the date on which [section 1(d) is adopted] . . . or (2) Members of the tribe who do not reside on the reservation of the tribe (a) Any –– (1) Expenditure for any improvement on the reservation of the tribe, or (2) Program or activity conducted only on the reservation of the tribe in which any member of the tribe can participate, shall not be construed to be discriminatory for purposes of subsection (a) merely because the benefits of such improvement, program, or activity are more readily available to members of the tribe who reside on the reservation of the tribe
JFA § (9).
Finally, the Enforcement Provision empowers the Secretary of the Interior to enforce the
provisions of the JFA.
5 The Secretary may take such action as the Secretary may determine to be necessary and appropriate to enforce the requirements of this Act. After notice and hearing, the Secretary may take such action as the Secretary may determine to be necessary and appropriate to assume administration of the Investment Fund fi it is determined that the Tribal Council has materially failed to administer the Investment Fund in accordance with the requirements of this Act. The Secretary shall provide whatever assistance may be necessary to the Tribal Council to correct any such deficiencies prior to the proposed Secretarial assumption of the administration of the Investment Fund . . . .
JFA § (5)(b)(2).
The Tribe passed the constitutional amendment broadening membership to nonresident
Tribal descendants and, as a result, subsequently received the funds delineated in the JFA. See
AR-001850-51. After 1986, the Tribe began to enroll nonresident Tribal members pursuant to
the statutory enrollment period. AR-000068. Out of 3,000 applications from nonresident
descendants, the Tribe enrolled around 800 new nonresident members between 1986 and 1996.
Intervenor’s Ans. at ¶ 49, ECF No. 23. 3
In 1996, the Tribe began several efforts to disenroll nonresident members. In 1996, the
Tribe passed an ordinance permitting the Tribe to disenroll members for submitting “deficient,
erroneous, or fraudulent evidence” to enroll. AR-000128-29. In 2000, the Tribe passed an
ordinance explicitly limiting membership to lineal descendants. See AR-000153-54. Then, in
2013, the Tribe’s court of last resort on matters of tribal law held that the tribal constitution’s
phrase “[a]ll descendants”––as amended pursuant to the JFA––meant only lineal descendants.
AR-000140. With that ruling in hand, the Tribe disenrolled hundreds of members, including
members enrolled pursuant to the JFA. Intervenor’s Ans. at ¶¶ 2, 69; AR-001361-70.
B. Procedural Background and Administrative Decision
3 Neither Plaintiffs nor the Federal Defendants contest this figure. Pl.’s Mot. at 12; Defs.’ Cross- Mot at 6.
6 Some, if not all, Plaintiffs then sued in a variety of fora to stop disenrollment. Relevant
to this APA challenge, Plaintiffs first asked for BIA’s intervention in July 2015. AR-001853.
After subsequent meetings between BIA officials and Plaintiffs in 2016 and 2017, BIA took no
action on Plaintiffs’ request. AR-001853-54. Plaintiffs then filed suit before this Court seeking
mandamus relief. See Cavazos v. Zinke, No. 18-cv-0891, 2019 WL 121210 (D.D.C. Jan. 7,
2019). Because Plaintiffs had not yet appealed their request for assistance to the Assistant
Secretary for Indian Affairs pursuant to 25 C.F.R. §§ 2.8-2.9, the Court dismissed Plaintiffs’
complaint for failure to exhaust administrative remedies. Id. at *7.
In February 2019, Plaintiffs returned to Interior by filing a renewed request for assistance
with the Deputy Director of the Bureau of Indian Affairs for Field Operations. AR-001854.
Having yet to receive a response from the Deputy Director, Plaintiffs filed an appeal with the
AS-IA on March 4, 2019. Id. The AS-IA directed Plaintiffs and the Tribe to brief the following
questions:
1. Did the [JFA] mandate the specific Plaintiffs’ enrollment in the Tribe? 2. Does the [JFA] vest Interior with either mandatory or discretionary authority to either protect the [Plaintiffs] from disenrollment from the Tribe or order [Plaintiffs] re- enrollment in the Tribe (as applicable)? 3. If the Act only vests the Secretary with discretionary authority, what legal and equitable factors should the Secretary consider when deciding whether to exercise that authority? 4. Did the Tribe’s disenrollment process deny [Plaintiffs’] due process and/or equal protection under the law?
As here, Plaintiffs spent much of their briefing on the JFA’s legislative history and the history of
Tribal membership. The AS-IA considered that legislative history and rejected that it meant that
the JFA barred disenrollment of nonresident Tribal members and, even if so, that Interior was
statutorily bound to intervene. Rather, it determined that the statutory meaning was plain or, in
the alternative, that the legislative history instead supported Interior’s reading of the JFA.
7 The AS-IA decision reasoned that the JFA permits––but does not require––Interior’s
intervention only where a requirement of the JFA has been violated. AR-001856-57. It further
concluded that, because the Nondiscrimination Provision does not discuss enrollment and there
is no other provision requiring Plaintiffs’ ongoing enrollment, disenrollment is not a violation of
the JFA’s requirements. AR-001860-61. In other words, “[n]either the plain language nor
legislative history of the Act reflect congressional intent to mandate the perpetual enrollment of
any individuals in the Tribe.” AR-001859. Finding no authority to intervene, the AS-IA denied
Plaintiffs’ request. AR-001863. At that point, having exhausted their administrative remedies,
Plaintiffs filed suit again this Court. After the Court permitted the Tribe’s intervention in this
case, the parties completed their summary judgment briefing. The Court now turns to the
briefing’s resolution.
8 II. LEGAL STANDARD
Under Rule 56(a) of the Federal Rules of Civil Procedure, “[t]he court shall grant
summary judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” However, “when a party seeks
review of agency action under the APA [before a district court], the district judge sits as an
appellate tribunal. The ‘entire case’ on review is a question of law.” Am. Bioscience, Inc. v.
Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001). Accordingly, “the standard set forth in Rule
56[ ] does not apply because of the limited role of a court in reviewing the administrative record .
. . . Summary judgment is [ ] the mechanism for deciding whether as a matter of law the agency
action is supported by the administrative record and is otherwise consistent with the APA
standard of review.” Southeast Conference v. Vilsack, 684 F. Supp. 2d 135, 142 (D.D.C. 2010).
The APA “sets forth the full extent of judicial authority to review executive agency
action for procedural correctness.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513
(2009). It requires courts to “hold unlawful and set aside agency action, findings, and
conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). “This is a ‘narrow’ standard of review as courts
defer to the agency’s expertise.” Ctr. for Food Safety v. Salazar, 898 F. Supp. 2d 130, 138
(D.D.C. 2012) (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983)). As the “focal point” in administrative review, the Court’s inquiry
is limited to the administrative record before it. Camp v. Pitts, 411 U.S. 138, 142 (1973).
Absent special circumstances, the Court is not to consider evidence outside the record or
arguments not raised before the agency. See Am. Bottling Co. v. NLRB, 992 F.3d 1129, 1139
(D.C. Cir. 2021).
9 III. DISCUSSION
A. Agency Review and Scope of Remand
As a general matter, the APA permits the Court only to “hold unlawful and set aside
agency action” that it determines to be invalid. 5 U.S.C. § 706(2). Only in “exceptional
situation[s]” involving “crystal-clear administrative error” may a Court order specific relief.
NLRB v. Food Store Empls. Union, Local 347, 417 U.S. 1, 8 (1974); Palisades Gen. Hosp. Inc. v.
Leavitt, 426 F.3d 400, 403 (D.C. Cir. 2005). “Under settled principles of administrative law,
when a court reviewing agency action determines that an agency made an error of law, the
court’s inquiry is at an end: the case must be remanded to the agency[.]” PPG Indus., Inc. v.
United States, 52 F.3d 363, 365 (D.C. Cir. 1995) (Silberman, J.).
Plaintiffs point to Cherokee Nation v. Nash, 267 F. Supp. 3d 86 (D.D.C. 2017) as a
purported exception to the statutory rule. Pls.’ Mot. at 43. The Federal Defendants correctly
note that Nash is distinguishable insofar as summary judgment was granted against the Cherokee
Nation, not the federal government. Defs.’ Cross-Mot. at 35 (citing 267 F. Supp. 3d at 140). The
two cases are distinguishable for an even more fundamental reason however––Nash was not an
APA case. The Cherokee Nation’s claim for declaratory relief was predicated upon an 1866
treaty between the United States and the Cherokee Nation, not upon unlawful agency action.
267 F. Supp. 3d at 91. As the case has no bearing on administrative law, and seeing no other
authority permitting the Court to stray from the statutory rule, the Court concludes at the outset
that the only relief it may grant to Plaintiffs is a remand to Interior for further proceedings.
B. Reviewability of Discretionary Agency Action
Defendants argue that the discretionary language of the Enforcement Provision makes the
AS-IA Decision “an agency action [] committed to agency discretion by law,” presumptively
10 unreviewable by the Court. Defs.’ Cross-Mot at 30 (quoting 5 U.S.C. § 701(a)(2)). Defendants
correctly note that “agency decisions not to institute enforcement proceedings” are generally
outside the bounds of APA review. Citizens for Resp. & Ethics v. FEC, 892 F.3d 434, 439 (D.C.
Cir. 2018). However, “an agency’s announcement of its interpretation of a statute, even when
that interpretation is advanced in the context of a decision not to take enforcement action,” is
reviewable. Edison Elec. Inst. v. EPA, 996 F.2d 326, 333 (D.C. Cir. 1993). This is so because
they “‘are more likely to be direct interpretations of the commands of the substantive statute
rather than the sort of intermingled assessments of facts, policy, and law that drive an individual
enforcement action.’” NAACP v. Trump, 298 F. Supp. 3d 209, 228 (D.D.C. 2018) (quoting
Crowley Caribbean Trans., Inc. v. Penia, 37 F.3d 671, 677 (D.C. Cir. 1994)). The issues here are
twofold: (1) whether disenrollment is a violation of one of the JFA’s provisions, and (2) if so,
whether Interior was required to intervene. These questions go precisely to agency authority and
statutory interpretation, not to discretionary enforcement. As such, the Court concludes that the
AS-IA Decision is reviewable, at least as to these questions, under the APA.
C. The JFA and Statutory Interpretation
To the extent this case is about federal law at all, it centers on the statutory interpretation
of the JFA. To evaluate Plaintiffs’ claim that Interior misread the relevant provisions of the JFA,
the Court must first apply “the ordinary tools of statutory construction” to determine “whether
Congress has directly spoken to the precise question at issue.” Chevron U.S.A., Inc. v. NRDC,
467 U.S. 837 (1984). “If the intent of Congress is clear, that is the end of the matter; for the
court, as well as the agency, must give effect to the unambiguously expressed intent of
Congress.” City of Arlington, Tex. v. FCC, 569 U.S. 290, 296 (2013) (quoting Chevron, 467 U.S.
at 842-43). As with all statutory interpretation, the Court “will not resort to legislative history to
11 cloud a statutory text that is clear.” Citizens for Resp. & Ethics in Wash. v. FEC, 904 F.3d 1014,
1018 (D.C. Cir. 2018).
If, however, “the statute is silent or ambiguous with respect to the specific issue,” the
Court must determine what deference to give to the agency’s interpretation. To merit Chevron
deference, the agency must show that Congress “has delegated authority to the agency to make
rules carrying the force of law,” “the agency interpretation claiming deference was promulgated
in the exercise of that authority,” and that it was promulgated after “relatively formal
administrative procedures that tend to foster the fairness and deliberation that should underlie a
pronouncement of legal interpretation.” Fogo De Chao (Holdings) Inc. v. U.S. Dep’t of
Homeland Sec., 769 F.3d 1127, 1136 (D.C. Cir. 2014) (cleaned up) (citing United States v. Mead
Corp., 533 U.S. 218, 226-27 (2001)). If the agency’s interpretation was not issued pursuant to
these three requirements, it may nevertheless be due lesser deference insofar as it has the
“‘power to persuade.’” Fox v. Clinton, 684 F.3d 67, 76 (D.C. Cir. 2012) (quoting Skidmore v.
Swift & Co., 323 U.S. 134, 140 (1944)). The parties disagree over what deference Interior’s
interpretation is due.
Plaintiffs insist that that Interior’s interpretation is due no deference whatsoever,
including Skidmore deference. The Federal Defendants maintain that Chevron deference
applies. Defs.’ Cross-Mot at 20. Whether, and under what circumstances, an interpretation
reached in an informal adjudication is entitled to Chevron deference is still a murky question in
this Circuit. In Mead, the Supreme Court left unanswered whether, and under what
circumstances, Chevron deference applies to informal adjudications. See 533 U.S. at 243
(Scalia, J., dissenting). This Circuit extends Chevron deference to an informal adjudication
where the informal adjudication was “intended to have general applicability and the force of
12 law.” Kaufman v. Nielsen, 896 F.3d 475, 484 (D.C. Cir. 2018); see also Menkes v. U.S. Dep’t of
Homeland Sec., 637 F.3d 319, 331 (D.C. Cir. 2011) (extending Chevron deference to Coast
Guard statutory interpretation where court on remand ordered Coast Guard to directly answer
ambiguous question of statutory interpretation). Additionally, the Circuit looks to “‘the
interstitial nature of the legal question, the related expertise of the Agency, the importance of
question to the administration of the statute, the complexity of that administration, and the
careful consideration the Agency has given the question over a long period of time.” Kaufman,
896 F.3d at 484 (quoting Barnhart v. Walton, 535 U.S. 212, 222 (2002)). The Court concludes
that, if there were some ambiguity in the relevant statutory provisions here, Interior’s
interpretation would be due Chevron deference.
To begin, the Court turns to the Fogo de Chao factors. First, the statute here delegates
exclusive authority to Interior to make rules regarding its execution. The JFA empowers the
Secretary of the Interior to “take such action as the Secretary may determine to be necessary and
appropriate to enforce the requirements of the Act.” JFA § 5(b)(2). The provision permits the
Secretary to issue orders, whether through informal or formal means, to enforce (and thereby
further define) the JFA. Second, Interior’s interpretation was promulgated here in response to a
request for it to intervene pursuant to the JFA’s terms. Third, the AS-IA employed relatively
formal procedures to arrive at his decision. The AS-IA ordered a briefing schedule and
considered a lengthy record that both Plaintiffs and the Tribe submitted for the AS-IA’s review.
The decision itself is written like a court decision and is fairly legalistic in its presentation. As
such, the Court concludes that Interior’s informal adjudication here meets the Fogo de Chao
factors.
13 Similarly, the decision has applicability over the entire population affected by the JFA
and, in answering several legal questions over the scope of the JFA, must have been intended to
carry the force of law. Although the JFA itself may not be as complicated or impactful as other
statutes that Interior administers, it is squarely within Interior’s expertise in tribal matters. Who
precisely benefits from the fund created by the JFA is also, the Court concludes, central to the
statute itself. Additionally, as Plaintiffs argue, BIA has considered the scope of the JFA since its
inception in 1986. On these facts, the Court finds that this informal adjudication is due Chevron
deference.
Indeed, the facts in this case are quite similar to those in Forest Cty. Potawatomi Cmty. v.
United States, 330 F. Supp. 3d 269 (D.D.C. 2018) (CKK). In that case, this Court confronted an
informal adjudication in which the AS-IA decided not to approve an amendment to a gaming
compact between a tribe and the State of Wisconsin. Id. at 278. Approval turned on the meaning
of a particular clause in the Indian Gaming Regulatory Act. Id. at 279. This Court held that
Interior’s interpretation was due Chevron deference because the AS-IA: (1) “consider[ed] the
arguments of the parties, submissions of interested stakeholders, past Decisions, and the intent of
Congress[;]” (2) ordered the same relatively formal briefing as here, and (3) intended its decision
to have precedential effect. Id. at 282. As such, even if the JFA were ambiguous––it is not––
Interior’s interpretation would be due Chevron deference.
1. Enrollment Provision
14 In their opening brief, Plaintiffs read the Enrollment Provision to require continued
enrollment of collateral descendants. Pls.’ Mot. at 23. 4 The Enrollment Provision entitles the
Tribe to the three remaining judgment funds if it passes an amendment to its constitution
extending membership to “[a]ll descendants of persons whose names appear on [the various
allotment] rolls . . . who are at least one-quarter degree Indian blood born.” AR-001851. It goes
on to explicitly permit the Tribe to pass any subsequent amendment provided that such an
amendment “may not be adopted before the date that is 18 months after” the triggering
amendment is adopted. JFA § 4(b). The Enrollment Provision, then, has no bar on subsequent
disenrollment of nonresident descendants; in fact, it permits it. Like the AS-IA, the Court does
not see any term imposing any permanent prohibition on constitutional amendments––or any
other tribal law––affecting membership in enrollment.
Similarly, the plain language of section 5 imposes no bar on subsequent membership
changes. It merely provides that if “the amendments to the constitution of the tribe referred to in
section 4(a) are adopted,” then “[t]he Secretary shall transfer the funds . . . to the Tribal Council.”
JFA § 5(a). Section 5 does not have any clause that prohibits the Tribe from making subsequent
membership changes. Nor does it have a clause that merely rescinds the funds or otherwise
punishes the Tribe for subsequent membership changes. As the AS-IA found, “[s]ection 5(a)
conditions the transfer of funds merely upon the Tribe’s ratification of the constitutional
amendments [in 4(a)], not upon the enrollment of any individuals or a particular interpretation of
the Tribe’s membership criteria.” AR-001857 (emphasis original). Whatever Plaintiffs’
4 “Nothing in the JFA suggests that membership could be time-limited or conditional.” In their reply, Plaintiffs insist that they do not, in fact, argue for “perpetual enrollment” of nonresident descendants, but rather that the Tribe cannot disenroll nonresident descendants because of their nonresident status. Pls.’ Repl. at 16-17. For present purposes, this strikes the Court as a distinction without a difference.
15 understanding of the legislative history and public-regarding purpose of the JFA, the plain
meaning of the statutory language in the Enrollment Provision forecloses Plaintiffs’ reading.
2. Nondiscrimination Provision
Both Plaintiffs and the Federal Defendants, however, misread the plain language of the
Nondiscrimination Provision. Plaintiffs insist that disenrollment is itself discrimination within
the meaning of the provision. The Federal Defendants, on the other hand, argue that the
Nondiscrimination Provision bars discrimination against only current members of the Tribe.
Both readings are incorrect.
The Nondiscrimination Provision bars the Tribe from discriminating against “individuals
who become members of the tribe after the date of [the membership] amendment[]” and
“members of the tribe who do not reside in the reservation of the tribe” in the “distribution” and
access to “any program or activity funded, in whole or in part, by the principal or income of the
Investment Fund.” JFA § 9. As such, the class of people protected by this provision is
“individuals who become members of the tribe after the date on which the [enrollment]
amendments” are ratified. JFA § 9(a)(1). The services and benefits to which that class must
have equal access are those “program[s] or activit[ies] funded, in whole or in part, by the
principal or income of the Investment Fund.” Id. § 9(a). Taken together, this federal law
guarantees equal access to Tribal benefits and services funded by the Investment Fund to anyone
who was once a member who enrolled after the constitutional amendment that broadened tribal
membership to “[a]ll descendants.” The AS-IA Decision was correct that the Nondiscrimination
Provision covers “members of the tribe who do not reside on the reservation of the tribe,” AR-
001859 (quoting JFA § 9(a)(2)), but it also covers individuals who, by the plain language of the
16 statute, may or may not be presently enrolled members of the Tribe. 5 As such, the Court agrees,
in part, with Plaintiffs that “Congress, in taking pains to protect ‘individuals’ who were enrolled
pursuant to the JFA, made clear that the Tribe could not elude Section 9 . . . .” Pls. Br. at 33.
That cuts against Plaintiffs’ reading, however, as the statutory language anticipates that
nonresident members may be disenrolled at some future date.
Ultimately, Interior’s misreading necessitates only a minor remand. Plaintiffs, after all,
seek only their re-enrollment as a remedy, and not an order requiring continued, equal access to
Tribal services funded by the JFA funds. That said, because, as the Court shall next discuss,
Interior’s erroneous reading of the statute informed their decision to decline to exercise their
discretionary authority to enforce the provisions of the Nondiscrimination Mandate, a remand is
necessary to afford Interior the opportunity to reconsider its decision in light of the correct
reading of the statute.
3. Enforcement Provision
In fact, a remand may end up a as moot point, because the Enforcement Provision
extends Interior broad discretion to intervene in Tribal disputes centered on the JFA. Pursuant to
the Enforcement Provision,
5 The Federal Defendants briefly contest this reading in their briefing, writing, “the mere use of the word [‘]individuals[’] in this context does not indicate that the Funds Act charges Interior with guaranteeing the membership status of all individuals enrolled pursuant to the Funds Act for all-time.” Defs.’ Cross-Mot. at 17. Strictly speaking, the Court agrees. The word “individuals” guarantees equal access to benefits and services funded by the Investment Act for all time, not enrollment (i.e., membership). To the extent that the Federal Defendants meant to argue, by this single sentence, that the Nondiscrimination Provision covers only members of the Tribe notwithstanding the word “individuals,” the Court must remand the point to Interior as Interior did not appear to consider this reading in its Decision. See SEC v. Chenery Corp., 318 U.S. 80, 88 (1943); see also generally The Constitutional Foundations of Chenery, 116 Yale L.J. 952 (2007) (explaining why a court cannot accept an agency’s ex post facto justifications for agency action).
17 [t]he Secretary [of the Interior] may take such action as the Secretary may determine to be necessary and appropriate to enforcement the requirements of this Act. After notice and hearing the Secretary may take such action as the Secretary may determine to be necessary and appropriate to assume administration of the Investment Fund if it is determined that the Tribal Council has materially failed to administer the Investment Fund in accordance with the requirements of this Act.
JFA § 5(b)(2) (emphasis added). Relying heavily on legislative history, Plaintiffs argue that
“may” actually means “shall.” Not so. The plain language of this provision extends only
permissive authority to Interior to enforce the requirements of the JFA. This provision’s use of
“may” stands in stark contrast to other instances of the word “shall,” included in the
Nondiscrimination Provision. Another instance of the word “shall,” later in subsection 5(b)(2),
provides that Interior “shall provide whatever assistance may be necessary” to the Tribe before
exercising its discretionary authority to intervene. “[A] reading of the provision as a whole––
especially the repeated use of the word ‘may’ rather than ‘shall’” means Interior’s authority to
intervene here is purely discretionary. See Ala. Power v. FERC, 160 F.3d 7, 11 (D.C. Cir. 1998);
see also Anglers Cons. Network v. Pritzker, 809 F.3d 664, 671 (D.C. Cir. 2016) (making similar
distinction between “may” and “shall”).
The Enforcement Provision is also noticeably bare of any reference to tribal enrollment.
In fact, the Enforcement Provision only mentions specifically “administration of the Investment
Fund.” As the Court discusses in Part II.B.4, this language suggests that Congress was primarily
focused on the proper provision of the appropriated funds, not on enrollment disputes. The
Court sees no statutory language permitting it to read into the JFA terms that are not already
there. See Little Sisters of the Poor Stains Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367,
2381 (2020) (explaining that a court should not add “limits on an agency’s discretion that are not
supported by the text”). In any event, the AS-IA Decision appropriately concluded that this
permissive language did not require, or even counsel, Interior’s “intrusion in tribal self-
18 governance.” AR-001855. As such, the Court concludes that the plain language of the
Enforcement Provision neither makes perpetual enrollment a requirement of the JFA nor requires
Interior’s intervention in this case.
4. Ambiguity and Legislative History
Alternatively, even if there were some ambiguity, the Court concludes that the legislative
history does not permit a reading of the JFA that requires Plaintiffs’ continued enrollment in the
Tribe. The legislative history explains that Congress was primarily concerned with the use of its
appropriated funds, not with Tribal membership decisions. Plaintiffs rely heavily on testimony
from Tribal Council leadership who purportedly assured collateral descendants and Congress that
collateral descendants would have guaranteed membership. As an initial matter, what the Tribe
may have promised may nevertheless be distinct from what Congress enshrined as federal law.
In any event, Tribal Council leadership made no such promise; their testimony was that “[a]ll
descendants of at least one-quarter degree Indian blood will have the opportunity to apply for
membership.” AR-001858 (emphasis altered). Similarly, the March 20, 1986 Committee Report
notes that the bill as amended “provides that the funds will not be transferred to the tribe unless
the tribe agrees to make all [collateral] descendants . . . eligible for membership.” AR-000916
(emphasis added).
The Committee Report goes on to demonstrate that Congress’ main concern was the
distribution of the funds, not enrollment itself. The Committee explains “there is no reason to
continue to issue per capita shares to individuals who, even though they may be descendants of
an Indian ancestor” are nevertheless not eligible for membership in the Tribe. See AR-000916.
In other words, Congress saw enrollment as a vehicle to accomplish the law’s goal of equitable
distribution of judgment funds. Enrollment itself was not the true goal of the legislation. This
19 legislative history explains why the JFA vested Interior with the discretionary authority to
intervene only in the “administration of the Investment Fund” and not in enrollment decisions.
See JFA § 5(b)(2).
This reading also squares best with BIA’s concerns with earlier versions of the legislation.
On August 6, 1984, BIA leadership testified that it was concerned that an early draft of the bill
did not equally “divide[] [the funds] between the Saginaw Chippewa Tribe of Michigan and the
Saginaw Chippewa descendants.” AR-000826. To be acceptable to BIA, the legislation would
have to address “almost 80 percent of the proposed beneficiaries [unenrolled descendants] as
well as . . . [provide] the Secretary of the Interior[] responsibility for carrying out the trust.” AR-
000827. BIA did not, however, say that the legislation would have to secure membership for
unenrolled descendants or vest Interior with any authority to require continued enrollment. Even
testimony from collateral descendants themselves shows that their concern was more with the
equitable distribution of federal funds than tribal membership. For example, Karen Sherwood’s
testimony, as “a descendant of the Saginaw,” made no mention of enrollment, but did insist that
Congress’s “responsibility [was to] see that the descendants are paid.” AR-000658 (emphasis
added).
Plaintiffs’ strongest point in the legislative history comes from the statement of a co-
sponsor during debate on the House floor. Rep. Schuette insisted that, as to the Enrollment
Provision, “[d]escendants feared that once membership was opened to those with 25 percent
Saginaw-Chippewa blood quantum, the constitution could be amended once more to
disenfranchise these new members. With this provision, the descendants’ rights and the
descendants’ privileges are fully protected.” AR-000940. During the same debate, however,
other Members were primarily concerned with the provision of funds, not membership. Rep.
20 Traxler asked Rep. Schuette “[e]verything that the tribal Indian would be entitled to under the
trust funds, then we can safely say that off-reservation, the descendant Indian, would also be
eligible for[?]” Id. (emphasis added). That Rep. Schuette responded that enrollment ensured
equal access spoke to how this Court reads the statute to function, i.e., that enrollment is one
vehicle to equal access to JFA funds. In any event, the Court is inclined to defer to Interior’s
interpretation, that the legislative history does not “reflect congressional intent to mandate the
perpetual enrollment of any individuals in the Tribe,” AR-001859, as reasonable, Chem. Mfrs.
Ass’n v. EPA, 217 F.3d 861, 866 (D.C. Cir. 2000) (holding that Chevron affords deference to any
agency interpretation of an ambiguous statute so long as it is reasonable).
Nor does the legislative history support a conclusion that Congress intended Interior to
have any duty––discretionary or mandatory––to ensure the continued enrollment of collateral
descendants. At the outset, the Court starts with a presumption that, were the statute ambiguous,
ambiguity should be resolved in favor of tribal sovereignty. See Muscogee (Creek) Nation v.
Hodel, 851 F.2d 1439, 1445 (D.C. Cir. 1988) (“The canons of construction applicable in Indian
law are rooted in the unique trust relationship between the United States and the Indians.”
(cleaned up) (quoting Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 765 (1985))).
Congress generally “desire[s] not to intrude needlessly on tribal self-government,” and,
historically, did not during the time the JFA was enacted. See Santa Clara Pueblo v. Martinez,
436 U.S. 49, 71 (1978); see also White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143
(1980).
Plaintiffs rely primarily on a February 28, 1986 letter Interior sent to Congress supporting
the JFA as amended. Plaintiffs maintain that Interior was “particularly persuaded” by the new
Nondiscrimination Provision and understood it to “‘require secretarial intervention.’” Pls. Br. at
21 12 (quoting AR-000921)). That is not what the letter said. Interior wrote, “[w]e interpret [the
Nondiscrimination Provision] to require secretarial intervention only on the receipt of verified
information that the tribal council failed to administer the Investment Fund in accordance with
the bill.” AR-000921. In other words, failure to properly administer the Fund set up a necessary,
but not sufficient, condition for Interior’s intervention. In fact, Interior viewed its authority as
quite limited. It understood the JFA to release Interior from “further trust responsibility for the
investment, supervision, administration, or expenditure of the principal or income of the fund”
upon “the completion of the transfer [of funds] to the tribal council for deposit in the Investment
Fund.” Id. Seeing no other legislative history supporting mandatory Secretarial intervention, the
Court agrees with Interior’s reasonable reading that the Enforcement Provision is discretionary. 6
D. Purported Change in Agency Position
Plaintiffs next argue that BIA “changed its understanding of the JFA.” Pls.’ Br. at 41.
Plaintiffs correctly note that an agency’s failure to “offer a reasoned explanation . . . for
disregarding facts and circumstances that underlay . . . the prior policy” is its own basis for
remand. See United Steel v. MHSA, 925 F.3d 1279, 1284 (D.C. Cir. 2019) (internal quotation
marks removed). “‘It is a hard and fast rule of administrative law, rooted in simple fairness, that
issues not raised before an agency are waived and will not be considered by a court on review.’”
New LifeCare Hosps. of N.C. LLC v. Azar, 466 F. Supp. 3d 124, 135 (D.D.C. 2020) (TNF)
(emphasis omitted) (quoting Wallasea v. FAA, 825 F.3d 1071, 1078 (D.C. Cir. 2016)). The
degree to which Plaintiffs articulated BIA’s prior position in its briefing before the agency is
6 In other words, were the statute ambiguous, the Court would defer to Interior’s interpretations of the Enforcement Provision and Enrollment Provision as reasonable. The Court would not defer to Interior’s reading of the Nondiscrimination Provision insofar as it views it as applicable only to presently-enrolled Tribal members.
22 questionable. Plaintiffs’ request for BIA’s assistance, submitted October 16, 2016, included an
affidavit that, in one sentence, alleged that “the BIA instructed [Tribal enrollment staff] that any
applicant for membership who had been certified as eligible to participate in Docket 57 and who
was of at least one-quarter blood Indian must be enrolled if they applied for Tribal Membership
during open enrollment [in 1986 and 1987].” AR-00010. Plaintiffs never articulated this
allegation as a general claim that BIA had previously determined (1) that the JFA guarantees
perpetual enrollment of collateral or (2) that BIA has a mandatory duty to ensure their perpetual
enrollment. To the extent that such an argument was raised in its October 2016 briefing,
Plaintiffs nevertheless failed to preserve it in its briefing before the AS-IA.
Even had this argument been preserved, it fails. First, as a practical matter, the regional
staff’s purported guidance speaks only to who “must be enrolled,” not whether the JFA requires
perpetual enrollment or whether BIA has a mandatory duty to ensure their perpetual enrollment.
Second, Plaintiffs in their October 2016 request characterize BIA’s early purported position as
“informal advice and training” from “Agency staff” based at the “Michigan Agency in Sault Ste.
Marie.” AR-00039-40. Pursuant to 25 C.F.R. § 61.11(c), 50 Fed. Reg. 46430 (Nov. 8, 1985),
only the “[Regional] Director or Superintendent” may determine tribal enrollment eligibility.
There is no evidence here that any Regional Director or Superintendent promulgated any
guidance on eligibility as to the Tribe nor any evidence that the unnamed staff had such authority.
As such, it is not at all clear that the unnamed staff had the authority to make any “prior policy”
from which BIA might have deviated. See Ctr. for Auto Safety v. Nat. Highway Traffic Safety
Admin., 452 F.3d 798, 810 (D.C. Cir. 2006) (explaining that agency could not have adopted
23 policy guidance if agency employee who stated such guidance did not have power to make
guidance on behalf of agency). 7
Finally, no other BIA decision or statement supports Plaintiffs’ allegation that BIA
changed its position. As explained in Part II.C.4 supra, Interior maintained in February 28, 1986
letter to Congress––which contained “[t]he current views of the Department of the Interior”––
that it did not provide for mandatory Secretarial intervention. AR-000921. Interior’s letter was
silent as to perpetual enrollment. 8 AR-000921-22. In fact, Interior only definitively, i.e., with
legal effect, answered these questions with the AS-IA’s Decision in January 2020. Therefore,
even if Plaintiffs had not waived the argument, the Court finds that Interior did not arbitrarily or
capriciously change its position without sufficient explanation.
IV. CONCLUSION
In this APA challenge, the agency below determined the right outcome––for mostly the
right reasons. The AS-IA erred only to the extent that it read the JFA to provide no protections
for disenrolled members of the Tribe. Because the AS-IA relied, in part, on that incorrect reading
to determine that it cannot (and should not) exercise its discretionary authority to intervene in
matters related to JFA, the Court GRANTS IN PART AND DENIES IN PART Federal
Defendants’ [29] Cross-Motion for Summary Judgment and GRANTS IN PART AND DENIES
7 The Court only assumes, without deciding, that such a statement, if promulgated by the proper authority, would be policy guidance. Even if it would have been the agency’s position, it would still have no legal effect unless BIA intended it to be binding and BIA applied it in such a way as to be binding. See Gen. Elec. Co. v. EPA, 290 F.3d 377, 383 (D.C. Cir. 2002). Given, as Plaintiffs stated, BIA staff provided only informal guidance to the Tribe, the Court doubts such guidance would have had legal effect. 8 Plaintiffs also argue that Interior changed its position on the definition of the word “descendant” in the 1986 Tribal constitution. As the Court has explained in Part II.B, the definition of the word “descendant” is a matter of tribal law. The relevant questions before this Court are those of federal law.
24 IN PART Plaintiffs’ [21] Motion for Summary Judgment. The Court further VACATES the
Assistant Secretary for Indian Affairs’ January 30, 2020 Decision and REMANDS this case to
the Assistant Secretary consider further whether, the U.S. Department of the Interior should
exercise its discretionary authority to intervene in alleged inequitable provision of services and
benefits funded by the JFA––as stated in Plaintiffs’ April 2, 2019, Statement of Reasons––in light
of the Memorandum Opinion. An appropriate Order accompanies this Memorandum Opinion.
Dated: January 10, 2022 /s/ COLLEEN KOLLAR-KOTELLY United States District Judge