Wyandot Nation of Kansas v. United States , 858 F.3d 1392 ( 2017 )

United States Court of Appeals
for the Federal Circuit
______________________
WYANDOT NATION OF KANSAS, AKA
WYANDOTTE TRIBE OF INDIANS,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2016-1654
______________________
Appeal from the United States Court of Federal
Claims in No. 1:15-cv-00560-TCW, Judge Thomas C.
Wheeler.
______________________
Decided: June 8, 2017
______________________
MARIO GONZALEZ, Gonzalez Law Office, Prof. LLC,
Rapid City, SD, argued for plaintiff-appellant. Also repre-
sented by BRIAN JOHN LEINBACH, Engstrom, Lipscomb &
Lack, Los Angeles, CA.
ALLEN M. BRABENDER, Environment and Natural Re-
sources Division, United States Department of Justice,
Washington, DC, argued for defendant-appellee. Also
represented by JOHN C. CRUDEN.
______________________
2 WYANDOT NATION OF KANSAS v. UNITED STATES
Before DYK, O’MALLEY, and WALLACH, Circuit Judges.
Opinion for the court filed by Circuit Judge DYK.
Concurring in the result filed by Circuit Judge O’MALLEY.
DYK, Circuit Judge.
The Wyandot Nation of Kansas (“Wyandot Nation”) is
a Native American tribe allegedly tracing its ancestry to
the Historic Wyandot Nation. It claims to be a federally
recognized Indian tribe and a successor-in-interest to all
of the treaties between the Historic Wyandot Nation and
the United States. On June 1, 2015, Wyandot Nation
filed a complaint in the United States Court of Federal
Claims alleging that the United States had breached its
trust and fiduciary obligations with respect to two trusts
that resulted from prior treaties, including one related to
amounts payable under a treaty signed in 1867 and one
related to the Huron Cemetery. The Court of Federal
Claims dismissed without prejudice for lack of jurisdiction
and standing. Wyandot Nation appeals. We affirm.
BACKGROUND
I
One of the disputes here concerns the claimed enti-
tlement of the appellant to an accounting of a trust fund
allegedly resulting from an 1867 treaty (called the Cate-
gory One claims). The background of the dispute is as
follows.
A
The Historic Wyandot Nation resided in modern-day
Ohio and Michigan. In 1842, the Historic Wyandot Na-
tion ceded to the United States all of its lands and posses-
sions in Ohio and Michigan in exchange for a promise of
148,000 acres west of the Mississippi. That land grant
never occurred, forcing the Historic Wyandot Nation to
purchase 1,920 acres of land located in modern-day Kan-
WYANDOT NATION OF KANSAS v. UNITED STATES 3
sas from the Delaware Tribe in 1848. In 1850, the Histor-
ic Wyandot Nation and the United States entered into a
treaty, rescinding any claims the Historic Wyandot Na-
tion may have had with respect to the previously prom-
ised 148,000 acres, in exchange for $100,000 and
extinguishing the Historic Wyandot Nation’s debt to the
Delaware Tribe for its 1848 land purchase. See Treaty
with the Wyandot, Apr. 1, 1850, 9 Stat. 987 (“Treaty of
1850”).
In 1855, the United States entered into another treaty
with the Historic Wyandot Nation, in which the tribe
agreed to be dissolved and to cede its lands to the United
States, in exchange for the ceded lands to be divided in fee
simple to the individual tribe members, a payment of
$380,000 to be distributed equally among tribe members,
and the $100,000 payment from the Treaty of 1850 also be
distributed equally among tribe members. See Treaty
with the Wyandots, Jan. 31, 1855, 10 Stat. 1159 (“Treaty
of 1855”).
During the Civil War, many Native American tribes
suffered hardships and were forced to sell their lands. In
response, in 1867, the United States entered into a new
treaty with several tribes. See Treaty with the Seneca,
etc., Feb. 23, 1867, 15 Stat. 513, 516 (“Treaty of 1867”).
The Treaty of 1867 set aside 20,000 acres of federally
purchased lands in Oklahoma to become a reservation for
a newly-constituted Wyandot Tribe, and it allowed indi-
vidual Wyandot Indians to choose to either become mem-
bers of this newly reconstituted tribe or become United
States citizens.
Schedule A, appended to the Treaty of 1867, provided
for the payment of $28,109.51—to be divided and paid to
Wyandot Indians and their heirs—to satisfy what was
determined to be due from the claims of the Wyandots
against the United States, for all of its former treaties and
4 WYANDOT NATION OF KANSAS v. UNITED STATES
sales of treaty lands. The parties dispute whether these
funds were properly paid. The United States asserts that
it had correctly paid the amounts due in 1882 to the
rightful claimants. The appellant asserts that there are
unpaid amounts due to the heirs of Wyandot Nation that
the United States currently holds in trust, for which the
appellant is owed a full accounting and fiduciary trust
duties.
The parties in this case also dispute the relationship
of the modern-day Wyandot Nation of Kansas to the
Wyandot Tribe recognized by the Treaty of 1867. The
government asserts that this newly reconstituted tribe
became known as the Wyandotte Nation. The federal
government recognizes the Wyandotte Nation of Oklaho-
ma as its present day successor. That tribe has its head-
quarters in Wyandotte, Oklahoma.
The appellant, on the other hand, asserts that despite
the Treaty of 1855, the Historic Wyandot Nation did not
dissolve. Rather, the appellant contends that after the
Treaty of 1867 was executed, some tribe members moved
to the Oklahoma reservation established under the treaty,
while others chose to remain in Kansas. According to the
appellant, these two separate bands—of which the Wyan-
dotte Nation of Oklahoma and the Wyandot Nation of
Kansas are the modern-day successors—were both a part
of the newly constituted Wyandot Tribe in 1867. The
appellant therefore asserts that it is a federally recog-
nized tribe by virtue of the Treaty of 1867. However, in a
1996 settlement agreement with the Wyandotte Nation of
Oklahoma over disputed land use, the appellant also
admitted that “the Kansas Wyandot is a non-federally
recognized . . . Indian Tribe.” S.A. 36.
In 1937, the Oklahoma band reorganized as a sepa-
rate tribe under the Oklahoma Indian Welfare Act
(“OIWA”), which provided that “[a]ny recognized tribe or
WYANDOT NATION OF KANSAS v. UNITED STATES 5
band of Indians residing in Oklahoma shall have the right
to organize for its common welfare.” 49 Stat. 1967 § 3
(1936). In 1959, the Kansas band changed its name to the
Wyandot Nation of Kansas. The Wyandot Nation of
Kansas is currently incorporated under Kansas law.
B
In 1994, Congress enacted the American Indian Trust
Fund Management Reform Act (“Reform Act”), Pub. L.
No. 103-412, 108 Stat. 4239 (1994), which provided that
“[t]he Secretary [of the Interior] shall account for the daily
and annual balance of all funds held in trust by the
United States for the benefit of an Indian tribe.” 25
U.S.C. § 4011(a). The Reform Act defined “Indian tribe”
as “any Indian tribe, band, nation, or other organized
group or community, . . . which is recognized as eligible
for the special programs and services provided by the
United States to Indians because of their status as Indi-
ans.” 25 U.S.C. § 4001(2).
Almost simultaneously, Congress also enacted the
Federally Recognized Indian Tribe List Act of 1994 (“List
Act”), Pub. L. No. 103-454, 108 Stat. 4791 (1994), which
provided that
the Secretary of the Interior is charged with the
responsibility of keeping a list of all federally rec-
ognized tribes; . . . the list published by the Secre-
tary shall be accurate, regularly updated, and
regularly published . . . ; and . . . the list of feder-
ally recognized tribes which the Secretary pub-
lishes should reflect all of the federally recognized
Indian tribes in the United States which are eligi-
ble for the special programs and services provided
by the United States to Indians because of their
status as Indians.
Id. § 103(6)–(8). The List Act approved existing regula-
tions spelling out a mechanism whereby any entity not on
6 WYANDOT NATION OF KANSAS v. UNITED STATES
the annual Department of the Interior (“Interior”) list can
pursue federal recognition. See 25 C.F.R. pt. 83(c).
Wyandot Nation is not on the list maintained by the
Secretary of the Interior. The appellant petitioned Interi-
or in 1996 for federal recognition pursuant to the List Act
regulations. Interior preliminarily determined that “the
Wyandot Nation of Kansas, which consists of the de-
scendants of the citizen Wyandotts of Kansas terminated
in 1855, [does not qualify for] Federal acknowledgement
through the administrative process and can only become a
Federally recognized Indian Tribe by an act of Congress.”
S.A. 20. The appellant did not pursue further administra-
tive or judicial review of this agency action.
One other statutory provision is pertinent. During
the period from 1990 through 2014, the Department of
Interior Appropriation Act riders provided that claims for
losses or mismanagement of Indian trust funds do not
accrue “until the affected Indian tribe or individual Indian
has been furnished with an accounting of such funds.”
See, e.g., Consolidated Appropriations Act, 2014, Pub. L.
No. 113-76, § 2, 128 Stat. 5, 305–06 (“Appropriation
Riders”).
II
A second dispute in this case (called the Category Two
claims) concerns the ownership of the Huron Cemetery in
modern-day Kansas City, and funds derived from ease-
ments over this cemetery property.
Under the Treaty of 1855, certain ceded lands were
exempt from assignment to individual members, includ-
ing the Huron Cemetery, which was a historic Wyandot
burial ground. Easements for city streets have traversed
the Huron Cemetery since 1857. The parties dispute the
current ownership interests of the Huron Cemetery. The
appellant asserts that the United States holds the Huron
WYANDOT NATION OF KANSAS v. UNITED STATES 7
Cemetery land, as well as monies derived from ease-
ments, in trust for the benefit of the Wyandot Nation of
Kansas. The United States maintains that it holds title
to the Huron Cemetery in trust for the Wyandotte Nation
of Oklahoma, and that the appellant possesses no benefi-
cial interest in the land.
III
On June 1, 2015, the appellant filed suit in the Court
of Federal Claims, seeking an accounting of, and mone-
tary damages from alleged mismanagement of, the
Schedule A funds of the Treaty of 1867 (Category One
claims), and funds that may have been derived from
easements across the Huron Cemetery (Category Two
claims). The government moved to dismiss for lack of
jurisdiction, untimeliness, and failure to state a claim
upon which relief can be granted.
With respect to the Category One claims, the Court of
Federal Claims found that because the Wyandot Nation is
not a federally recognized Indian tribe, it is not entitled to
an accounting under the Reform Act. Because it is not
entitled to an accounting under the Reform Act, the
Wyandot Nation cannot rely on the Appropriations Riders
to avoid the statute of limitations bar that would obvious-
ly apply to its fund mismanagement claims. That is,
without the benefit of the Appropriation Riders, the six-
year statute of limitations barred fund mismanagement
claims that the appellant had known about since the
1880s. See 28 U.S.C. § 2501. The Claims Court therefore
dismissed without prejudice the Category One claims for
lack of jurisdiction.
With respect to the Category Two claims, the Court of
Federal Claims found that based on prior litigation, the
United States holds title to the Huron Cemetery in trust
for the Wyandotte Nation of Oklahoma. Because the
Wyandot Nation of Kansas has no beneficial interest in
8 WYANDOT NATION OF KANSAS v. UNITED STATES
the Huron Cemetery, the Claims Court dismissed without
prejudice the Category Two claims for lack of standing.
The Wyandot Nation appeals. We have jurisdiction
under 28 U.S.C. § 1295(a)(3).
This court reviews de novo a dismissal by the Court of
Federal Claims for lack of jurisdiction and for standing.
Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1359
(Fed. Cir. 2009); Frazer v. United States, 288 F.3d 1347,
1351 (Fed. Cir. 2002). We may affirm the Court of Feder-
al Claims’ dismissal on any ground supported by the
record. El-Sheikh v. United States, 177 F.3d 1321, 1326
(Fed. Cir. 1999).
DISCUSSION
I
Wyandot Nation asserts with respect to the Category
One claims that it is entitled to an accounting of, and
monetary damages for the mismanagement of, the Treaty
of 1867 Schedule A funds that the United States holds in
trust. The United States contends that the six-year
statute of limitations has run on any such claim.
To the extent that Wyandot Nation asserts accounting
and breach of trust claims based on the government’s
failure to make payment in the 1880s, such claims would
be time-barred because the complaint alleges that the
amounts that the government then calculated pursuant to
Schedule A were “paid to the Wyandotte Tribe of Indians
in 1888,” J.A. 55, providing notice that the government
had breached its obligations by failing to make full pay-
ment. Thus, the “claim made here would not be the sort
of claim for which a final accounting would be necessary
to put a plaintiff on notice of a claim, because claimants
knew or should have known that the money was publicly
distributed” in 1888, and the appellant would have no
“right to wait for an accounting.” Wolfchild v. United
WYANDOT NATION OF KANSAS v. UNITED STATES 9
States, 731 F.3d 1280, 1291 (Fed. Cir. 2013). The appel-
lant’s Category One claims therefore depend on its right
to an accounting under the Reform Act, 1 which would
arguably invoke the statute of limitations extensions
provided by the Appropriation Riders.
Understanding this dispute thus requires descriptions
of the Reform Act, the List Act, the corresponding regula-
tions, and their relevant provisions. The Reform Act
requires Interior to “account for the daily and annual
balance of all funds held in trust by the United States for
the benefit of an Indian tribe.” 25 U.S.C. § 4011(a). The
Appropriation Riders extend the statute of limitations to
pursue accounting breach of trust claims under the Re-
form Act until after “the affected Indian tribe . . . has been
furnished with an accounting of such funds.” 128 Stat. at
305–06.
Only an “Indian tribe” is entitled to an accounting
under the Reform Act. Wyandot Nation’s right to an
accounting, therefore, requires establishing that it is a
federally recognized “Indian tribe,” which the Reform Act
defines as “any Indian tribe, band, nation, or other orga-
nized group or community, . . . which is recognized as
eligible for the special programs and services provided by
the United States to Indians because of their status as
Indians.” 25 U.S.C. § 4001(2). Both parties agree that
1 Appellant alleges that during the settlement ne-
gotiations of its 2005 lawsuit, Wyandot Nation of Kansas
v. Norton, Case No. 1:05-cv-02491-THF (D.D.C.), “the
Federal Government repeatedly promised to provide an
accounting of the Wyandot Nation’s trust funds and non-
monetary trust funds.” Appellant Br. 30. This refers to
the fact that the government made non-binding offers for
an accounting. There is no allegation here that these
offers were accepted.
10 WYANDOT NATION OF KANSAS v. UNITED STATES
unless the appellant is a federally recognized Indian tribe,
it has no right to an accounting under the Reform Act.
The government contends that a tribe cannot be a
recognized Indian tribe within the meaning of the Reform
Act unless it is recognized as such by the Secretary of the
Interior under the List Act. The List Act requires the
Secretary of the Interior to annually “publish in the
Federal Register a list of all Indian tribes which the
Secretary recognizes to be eligible for the special programs
and services provided by the United States to Indians
because of their status as Indians.” 25 U.S.C. § 479a-1
(emphasis added). If an entity is not on the list, regula-
tions provide a process for petitioning for federal
acknowledgement. See 25 C.F.R. pt. 83(c).
Wyandot Nation contends that being listed pursuant
to the List Act is not a necessary condition to federal
recognition. Appellant points out that the List Act pro-
vides that “Indian tribes presently may be recognized by
Act of Congress; by the administrative procedures set
forth in part 83 of the Code of Federal Regulations de-
nominated ‘Procedures for Establishing that an American
Indian Group Exists as an Indian Tribe;’ or by a decision
of a United States court.” 108 Stat. at 4791. Wyandot
Nation asserts that it is already federally recognized
pursuant to the Treaty of 1867 and that this treaty right
should be recognized by the courts.
We are persuaded that the List Act regulatory scheme
exclusively governs federal recognition of Indian tribes.
At the outset, we reject the government’s contention
that the doctrine of exhaustion of administrative remedies
applies here. The government argues that Wyandot
Nation failed to exhaust its administrative remedies at
Interior for tribal recognition and that the List Act is a
“statutory scheme [that] displaces Tucker Act jurisdic-
tion.” Horne v. Dep’t of Agric., 133 S. Ct. 2053, 2062
WYANDOT NATION OF KANSAS v. UNITED STATES 11
(2013). We do not agree. “The doctrine of exhaustion of
administrative remedies . . . provides ‘that no one is
entitled to judicial relief . . . until the prescribed adminis-
trative remedy has been exhausted.’” Woodford v. Ngo,
548 U.S. 81, 88–89 (2006) (emphasis added). Had Wyan-
dot Nation sought only federal recognition as an Indian
tribe, dismissal for failure to exhaust the specific adminis-
trative remedies might have been appropriate, but the
appellant’s Category One claims are broader. Wyandot
Nation is also seeking an accounting and monetary dam-
ages. Because there is no exclusive administrative reme-
dy for an accounting and damages, we conclude that
administrative exhaustion does not apply to the Category
One claims and that there is no displacement of Tucker
Act jurisdiction. See, e.g., Cobell v. Salazar, 573 F.3d 808,
813 (D.C. Cir. 2009) (“The plaintiffs are entitled to an
accounting under the [Reform Act] statute. The district
court sitting in equity must do everything it can to ensure
that Interior provides them an equitable accounting.”
(citation omitted)).
While the exhaustion doctrine does not apply here, we
think that the doctrine of primary jurisdiction (treated by
the government only in a footnote) requires that the
appellant pursue the administrative remedies provided by
the List Act. 2
An explicit purpose of the List Act is to “establish[]
procedures and criteria for . . . addition to the Depart-
ment’s list of federally recognized Indian tribes.” 25
C.F.R. § 83.2. And the regulations specifically address
entities like the Wyandot Nation, which is asserting that
2 “[W]e may affirm the Court of Federal Claims’
judgment on any ground supported by the record.” Music
Square Church v. United States, 218 F.3d 1367, 1373
(Fed. Cir. 2000).
12 WYANDOT NATION OF KANSAS v. UNITED STATES
it was “previously acknowledged as a federally recognized
Indian tribe, or is a portion that evolved out of a previous-
ly federally recognized Indian tribe.” 25 C.F.R. § 83.12(a).
The regulations also provide guidance as to what needs to
be shown to gain recognition. See id.
“The doctrine of primary jurisdiction, like the rule re-
quiring exhaustion of administrative remedies, is con-
cerned with promoting proper relationships between the
courts and administrative agencies charged with particu-
lar regulatory duties.” United States v. Western Pacific
Railroad Co., 352 U.S. 59, 63 (1956). The doctrine of
primary jurisdiction
applies where a claim is originally cognizable in
the courts, . . . [but] enforcement of the claim re-
quires the resolution of issues which, under a reg-
ulatory scheme, have been placed within the
special competence of an administrative body; in
such a case, the judicial process is suspended
pending referral of such issues to the administra-
tive body for its views.
Id. at 64.
In Western Pacific, the Western Pacific Railroad billed
the government for a freight shipment, but the parties
disputed the accuracy of the billing because they disa-
greed as to the applicable tariff rate. Id. at 60–61. West-
ern Pacific Railroad sued to recover the monies owed in
the Court of Claims. Id. at 61. The Supreme Court held
that the interpretation of tariffs was a threshold issue to
the overall claim, and that this issue was within the
primary jurisdiction of the Interstate Commerce Commis-
sion. Id. at 63. Since this threshold issue was “within the
special competence of an administrative body[,] in such a
case[,] the judicial process is suspended pending referral
of such issues to the administrative body for its views.”
Id. at 64. “The doctrine of primary jurisdiction thus . . .
WYANDOT NATION OF KANSAS v. UNITED STATES 13
transfers from court to agency the power to determine
some of the incidents” of the broader claim. Id. at 65
(internal quotation marks omitted).
Subsequent Supreme Court cases have consistently
affirmed the doctrine of primary jurisdiction. In Port of
Boston Marine Terminal Ass’n v. Rederiaktiebolaget
Transatlantic, 400 U.S. 62, 68 (1970), the Court held that
“[w]hen there is a basis for judicial action, independent of
agency proceedings, courts may route the threshold
decision as to certain issues to the agency charged . . .
with primary responsibility for . . . [the] activity involved.”
In Ricci v. Chicago Mercantile Exchange, 409 U.S. 289,
302 (1973), the Court held that the overall “action should
be stayed until the administrative officials have had an
opportunity to act . . . [when] some facets of the [overall]
dispute . . . are within the statutory jurisdiction of the
[Commission] and . . . adjudication of that dispute by the
Commission promises to be of material aid in resolving”
the overall claim. The Ricci Court elaborated that “[w]e
make no claim that the Commission has authority to
decide” the overall dispute, id. at 307, but “[w]e . . . think
it very likely that a prior agency adjudication of this
dispute will be a material aid,” id. at 305, in either mak-
ing the “problem disappear[] entirely” or making for “a
more intelligent and sensitive [eventual judicial] judg-
ment,” id. at 307–08. And in Reiter v. Cooper, 507 U.S.
258 (1993), the Court held that
primary jurisdiction . . . is a doctrine specifically
applicable to claims properly cognizable in court
that contain some issue within the special compe-
tence of an administrative agency. It requires the
court to enable a “referral” to the agency . . . [and
the court] has discretion . . . , if the parties would
not be unfairly disadvantaged, to dismiss the case
without prejudice.
14 WYANDOT NATION OF KANSAS v. UNITED STATES
Id. at 268–69; see also 2 Richard J. Pierce, Jr., Adminis-
trative Law Treatise 1161 (5th ed. 2010) (“If a court
concludes that it has . . . jurisdiction over a dispute but
that an issue raised in the dispute . . . is within the pri-
mary jurisdiction of an agency, the court will defer any
decision in the dispute before it until the agency has
addressed the issue . . . .”).
“No fixed formula exists for applying the doctrine of
primary jurisdiction. In every case the question is wheth-
er the reasons for the existence of the doctrine . . . will be
aided by its application in the particular litigation.” W.
Pac., 352 U.S. at 64. The two rationales for the doctrine
are that “desirable uniformity . . . would [be] obtain[ed] if
initially a specialized agency passed on certain types of
administrative questions,” and that “the expert and
specialized knowledge of the agencies involved” would
help ensure that “the limited functions of review by the
judiciary are more rationally exercised.” Id. We conclude
that the threshold question here of whether Wyandot
Nation is a federally recognized Indian tribe is within the
primary jurisdiction of Interior. It is clear that “desirable
uniformity” would be obtained by such an approach and
that Interior has “expert and specialized knowledge” of
the issue involved.
Other courts have reached similar conclusions, hold-
ing that whether a particular entity is an Indian tribe is
to be first resolved by Interior. In James v. HHS, 824
F.2d 1132, 1137 (D.C. Cir. 1987), the Gay Head tribe, like
the Wyandot Nation, asserted that it “was already feder-
ally recognized,” and sought “a declaration ordering the
Department of the Interior to add the Gay Head Tribe to
the list of federally recognized tribes.” The District of
Columbia Circuit held that “[i]n cases such as this, where
Congress has delegated certain initial decisions to the
Executive Branch,” questions as to whether the Gay Head
WYANDOT NATION OF KANSAS v. UNITED STATES 15
tribe was federally recognized “should be made in the first
instance by the Department of the Interior.” Id.
The James court cited several reasons for requiring
Interior, rather than courts, to make tribal recognition
determinations. First, “Congress has specifically author-
ized . . . the regulatory scheme set up by the Secretary of
the Interior . . . to determine which Indian groups exist as
tribes. That purpose would be frustrated if the Judicial
Branch made initial determinations of whether groups
have been recognized previously.” Id. Second, such an
approach “allows the Department of the Interior the
opportunity to apply its developed expertise in the area of
tribal recognition,” since it “employs experts in the fields
of history, anthropology and genealogy, to aid in deter-
mining tribal recognition[,] . . . providing . . . expertise . . .
[that] would most assuredly aid in judicial review should
the parties be unsuccessful in resolving the matter.” Id.
at 1138. Finally, Interior had not “expressed a strong
position or an unwillingness to reconsider the issue of [a
tribe’s] acknowledgement.” Id. at 1139.
Again, recently, in Mackinac Tribe v. Jewell, 829 F.3d
754 (D.C. Cir. 2016), following James, the District of
Columbia Circuit held that
when a court is asked to decide whether a group
claiming to be a currently recognized tribe is enti-
tled to be treated as such, the court should for
prudential reasons refrain from deciding that
question until the Department [of the Interior]
has received and evaluated a petition under [25
C.F.R.] Part 83.
Id. at 757 (citations omitted).
In Western Shoshone Business Council v. Babbitt, 1
F.3d 1052, 1057 (10th Cir. 1993), the Tenth Circuit en-
dorsed and applied the James approach. There, Western
Shoshone argued that a tribe may be not included on the
16 WYANDOT NATION OF KANSAS v. UNITED STATES
Interior list and yet still be recognized as an Indian tribe.
The Tenth Circuit disagreed, explaining that
the limited circumstances under which ad hoc ju-
dicial determinations of recognition were appro-
priate have been eclipsed by federal regulation.
In 1978, the Department of Interior promulgated
regulations establishing procedures for establish-
ing that an American Indian group exists as an
Indian tribe. 25 C.F.R. pt. 83. . . . We therefore
conclude that the Tribe’s absence from this list is
dispositive.
Id. at 1056–57 (emphasis added) (internal quotation
marks omitted).
Again, in United Tribe of Shawnee Indians v. United
States, 253 F.3d 543, 546 (10th Cir. 2001), the Tenth
Circuit reaffirmed this approach. The United Tribe of
Shawnee Indians (“UTSI”) sought “a judicial ruling that it
is a recognized tribe by virtue of . . . the 1854 Treaty and
the decision in The Kansas Indians, 72 U.S. 737 (1866),
which held that the Shawnee tribe existed as a recognized
tribal entity in 1866.” The Tenth Circuit held that a tribe
seeking recognition is required first to seek recognition at
Interior, and not “attempt[] to bypass the regulatory
framework for establishing that an Indian group exists as
an Indian tribe. . . . We were strongly persuaded in this
matter by the decision in James.” Id. at 550 (citation
omitted).
The Second Circuit has also reached the same result.
In Golden Hill Paugussett Tribe of Indians v. Weicker, 39
F.3d 51, 55 (2d Cir. 1994), the Golden Hill tribe asserted
that it was the rightful owner of 20 acres of land in Con-
necticut because that land had been wrongfully conveyed
in violation of the Nonintercourse Act. To show a viola-
tion of the Nonintercourse Act, a plaintiff must show that
it is an Indian tribe. The Second Circuit held that the fact
WYANDOT NATION OF KANSAS v. UNITED STATES 17
that Interior “lacks the authority to determine plaintiff’s
land claim,” id. at 58, did not excuse the appellant from
first seeking Interior recognition as an Indian tribe, id. at
60. “Primary jurisdiction applies where a claim is origi-
nally cognizable in the courts, but enforcement of the
claim requires, or is materially aided by, the resolution of
threshold issues, usually of a factual nature, which are
placed within the special competence of the administra-
tive body.” Id. at 58–59. “The Department of the Interi-
or’s creation of a structured administrative process to
acknowledge ‘nonrecognized’ Indian tribes using uniform
criteria, and its experience and expertise in applying
these standards, has now made deference to the primary
jurisdiction of the agency appropriate” during the thresh-
old determination of the broader land claim. Id. at 60.
The doctrine of primary jurisdiction has particular
force in this area because of the long history making clear
that tribal recognition is a political question committed to
the political branches. “[I]t is the rule of this court to
follow the action of the executive and other political
departments of the government, whose more special duty
it is to determine . . . [i]f . . . Indians are recognized as a
tribe.” United States v. Holliday, 70 U.S. 407, 419 (1865);
see also United States v. Sandoval, 231 U.S. 28, 47 (1913)
(same); United States v. Zepeda, 792 F.3d 1103, 1114 (9th
Cir. 2015) (holding that “federal recognition of a tribe [is]
a political decision made solely by the federal government
and expressed in authoritative administrative docu-
ments”); Kahawaiolaa v. Norton, 386 F.3d 1271, 1276 (9th
Cir. 2004) (“[A] suit that sought to direct Congress to
federally recognize an Indian tribe would be non-
justiciable as a political question.”); Miami Nation of
Indians of Ind., Inc. v. Dep’t of the Interior, 255 F.3d 342,
347 (7th Cir. 2001) (Indian tribal “recognition lies at the
heart of the doctrine of political questions.” (internal
quotation marks omitted)).
18 WYANDOT NATION OF KANSAS v. UNITED STATES
In Samish Indian Nation v. United States, 419 F.3d
1355 (Fed. Cir. 2005), we addressed this issue in a differ-
ent context. Following James, we held that “[a]s a politi-
cal determination, tribal recognition is not justiciable,” id.
at 1370, that “the courts had no judicially discoverable or
manageable criteria by which to accord federal recogni-
tion,” id. at 1372, and that “judicial evaluation of [tribal
recognition] criteria [is precluded] in the first instance,”
id. at 1373. The Interior regulations “create a limited role
for judicial intervention, namely, APA review to ensure
that the government followed its regulations and accorded
due process. Thus, under the acknowledgement regula-
tions, the executive—not the courts—must make the
recognition determination.” Id. at 1373 (citation omitted);
see also Miami Nation, 255 F.3d at 348 (Interior regula-
tions “bring[] the tribal recognition process within the
scope of the Administrative Procedure Act . . . [which]
require[s] agencies, on pain of being found to have acted
arbitrarily and capriciously, to comply with their own
regulations . . . and . . . to make compliance with the
regulations judicially reviewable.” (citations omitted)).
We agree with the concurrence that in this case,
“absence from the list means absence of a right to an
accounting, which in turn means no timely claim exists.”
Conc. Op. at 2. Such an analysis is precisely the result of
the doctrine of primary jurisdiction, where courts could
have jurisdiction over a broad dispute (i.e., claims for an
accounting or monetary damages), but defer to an agency
to decide a narrow predicate issue (i.e., here, the right to
be on the List).
We hold that tribal recognition is within the primary
jurisdiction of Interior and that we thus cannot inde-
pendently make a determination of the effects of the
various treaties or resolve the various conflicting legal
and factual contentions about whether, apart from the
Interior determination, Wyandot Nation is a federally
WYANDOT NATION OF KANSAS v. UNITED STATES 19
recognized Indian tribe. Under such circumstances, a
court invoking the doctrine of primary jurisdiction has
discretion to stay or dismiss the proceeding. Reiter, 507
U.S. at 268. Here, Wyandot Nation did administratively
petition to be on the Interior list in 1996. After the agen-
cy made a “preliminary conclusion” that the Wyandot
Nation was ineligible, the appellant did not seek further
administrative action. S.A. 21. In light of the fact that
Wyandot Nation has previously petitioned Interior on this
exact issue and chose to abort the administrative proceed-
ing, we conclude that dismissal of its Category One claims
without prejudice is appropriate.
We note, however, that the administrative remedy is
still available to Wyandot Nation, as the government
agreed that the appellant may continue its petition to
seek federal recognition until Interior has reached its
“final decision.” Oral Arg. 17:02–28. Furthermore, it is
not disputed that judicial review in district court is avail-
able with respect to such a final decision once that remedy
has been pursued. Id. Although the appellant may seek
federal recognition, we do not address now what impact
such recognition might have on the other claims in ques-
tion here following such recognition if it occurred.
II
Wyandot Nation asserts with respect to the Category
Two claims that it is entitled to monetary damages from
the United States for failure to collect, account for, and
manage Huron Cemetery lands and its revenues generat-
ed from easements by Kansas City. We conclude that the
doctrine of primary jurisdiction also applies to these
claims.
Wyandot Nation argues that it has interest in the
Huron Cemetery. There is no claim here that the indi-
vidual members of Wyandot Nation have any interest in
the cemetery. Nor could they. In Conley v. Ballinger, 216
20 WYANDOT NATION OF KANSAS v. UNITED STATES
U.S. 84 (1910), the Supreme Court held that “the right of
the Wyandottes [over the Huron Cemetery] was in them
only as a tribe.” Id. at 90. Individual Wyandot Indians do
not have any beneficial interests in the Huron Cemetery.
Id.
Since Conley, the United States has claimed to hold
the cemetery in trust for the tribe—specifically, the
Wyandotte Nation of Oklahoma. “Huron Place Cemetery
has been used as a burial ground for Wyandotte Indians
for more than a century . . . . Since the incorporation of
the Wyandottes of Oklahoma, the United States has dealt
with them as the sole representative of the Wyandotte
Indians” with respect to this interest. City of Kansas City
v. United States, 192 F. Supp. 179, 181 (D. Kan. 1960).
For example, in 1996, the appellant and the Wyandotte
Nation of Oklahoma entered into a settlement agreement
resolving the future use of the Huron Cemetery, which
provided that “the United States claims to hold title to the
Huron Cemetery in trust for the Oklahoma Wyandotte.”
J.A. 8. And in 2001, during a dispute over whether gam-
ing activities could take place in tracts adjacent to the
Huron Cemetery, the Tenth Circuit concluded that the
Huron Cemetery was not a “reservation” for Indian Gam-
ing Regulatory Act purposes, but referred to the Wyan-
dotte Nation of Oklahoma as the beneficial interest
holders of that land. See Sac & Fox Nation of Mo. v.
Norton, 240 F.3d 1250, 1256, 1267 (10th Cir. 2001).
We need not decide whether these determinations are
binding on the appellant. Wyandot Nation’s claim to the
Huron Cemetery is based entirely on its assertion that it
is the successor of the Wyandot Tribe that had an interest
in the cemetery. The basis for the appellant’s argument is
that because it is the successor-in-interest to the Treaty of
1855, which set aside the Huron Cemetery for the benefit
of the Historic Wyandot Nation, it has a present-day
property interest in the Huron Cemetery. Appellant’s
WYANDOT NATION OF KANSAS v. UNITED STATES 21
claim thus is that it “is a federally recognized tribe that
currently has an unextinguished, Fifth Amendment
protected property interest in the Huron Cemetery.”
Appellant Br. 40. For the reasons discussed above, we
conclude that the threshold issue of whether the appellant
is in fact a federally recognized successor tribe to the
Historic Wyandot Nation is within the primary jurisdic-
tion of Interior, and that the Claims Court properly
dismissed without prejudice. Again, we do not make a
determination here as to what consequences federal
recognition, if it occurred, would ultimately have on the
appellant’s Category Two claims.
III
Having dismissed Wyandot Nation’s claims on the
ground of primary jurisdiction, we need not address the
government’s other arguments for affirming the dismis-
sal.
AFFIRMED
COSTS
No costs.
United States Court of Appeals
for the Federal Circuit
______________________
WYANDOT NATION OF KANSAS, AKA
WYANDOTTE TRIBE OF INDIANS,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2016-1654
______________________
Appeal from the United States Court of Federal
Claims in No. 1:15-cv-00560-TCW, Judge Thomas C.
Wheeler.
______________________
O’MALLEY, Circuit Judge, concurring in the result.
I concur in the result the majority reaches—that the
Court of Federal Claims judgment dismissing appellant’s
claim without prejudice should be affirmed. I do not
concur in the legal rationale employed to reach that
result, however. I do not think our analysis should be
driven by the doctrine of primary jurisdiction.
The claims court did not rely on the doctrine of prima-
ry jurisdiction in dismissing appellant’s complaint—it
instead concluded that the tribe’s absence from the list of
all federally recognized tribes dictated by the Federally
Recognized Indian Tribe List Act of 1994 (“List Act”)
2 WYANDOT NATION OF KANSAS v. UNITED STATES
meant that the Wyandot Nation of Kansas was not eligi-
ble for an accounting under the American Indian Trust
Fund Management Reform Act (“Reform Act”). Because
only the right to an accounting under the Reform Act
could restart the otherwise expired statute of limitations,
the court concluded that the claims were time barred. In
other words, absence from the list means absence of a
right to an accounting, which in turn means no timely
claim exists. I think the analysis we should employ is
that straight-forward. As the majority concludes, “[t]he
List Act regulatory scheme exclusively governs federal
recognition of Indian tribes.” Maj. Op. at 10.
It is not just the claims court who avoided resorting to
the doctrine of primary jurisdiction; neither party argued
for its application and neither briefed the question.
While—as the majority points out—the government
mentioned it as a possible alternative theory in a one-
sentence footnote, in this circuit that is the equivalent of
not raising the issue at all. SmithKline Beecham Corp. v.
Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006) (noting
that an argument is waived if made in only a passing
reference with no developed argumentation and that
“arguments raised in footnotes are not preserved”).
Indeed, virtually every case upon which the majority
relies to support its conclusion that the Wyandot Nation
of Kansas’s absence from the list prepared by the Secre-
tary of the Interior pursuant to the List Act is fatal to
their claims avoids reference to the doctrine of primary
jurisdiction. James v. HHS, 824 F.2d 1132 (D.C. Cir.
1987), and Mackinac Tribe v. Jewell, 829 F.3d 754 (D.C.
Cir. 2016), speak in terms of exhaustion, while Western
Shoshone Business Council v. Babbitt, 1 F.3d 1052 (10th
Cir. 1993), and United Tribe of Shawnee Indians v. United
States, 253 F.3d 543 (10th Cir. 2001), rely on concepts of
standing and the inability of a tribe who is not on the list
to state a claim for relief under the Reform Act. These
WYANDOT NATION OF KANSAS v. UNITED STATES 3
theories are closer to the mark in my view—particularly
those articulated by the Tenth Circuit.
The one tribal case that does discuss the concept of
primary jurisdiction is not to the contrary. The Second
Circuit relied on the concept of primary jurisdiction in
Golden Hill. See Golden Hill Paugussett Tribe of Indians
v. Weicker, 39 F.3d 51 (2d Cir. 1994). But: (1) that case
did not involve the Reform Act, but instead was consider-
ing a cause of action under the Nonintercourse Act of
1790; (2) the case was decided before and without the
benefit of the 1994 List Act; (3) the court concluded that it
did have jurisdiction to declare the tribe before it eligible
for relief under the Nonintercourse Act; (4) the court
declined to do so, however, in deference to an already
pending action before the Secretary of the Interior seeking
such recognition; and (5) the court expressly declined to
decide whether the doctrine of primary jurisdiction would
require the same result in the absence of an already
instituted administrative proceeding. Those facts are
materially distinguishable from those before us. We are
operating with the benefit and direction of the Reform Act
and the List Act. Neither the claims court nor we have
authority to give the appellant the relief it seeks because
they cannot allege that they have a statutory prerequisite
to that relief—inclusion on the list.
I view this case as the equivalent of someone who as-
serts a claim for patent infringement without first seeking
and obtaining a patent from the Patent and Trademark
Office (“PTO”). The court would have no authority to
recognize a common law right to a patent. It is not that
the PTO would have primary jurisdiction to issue a pa-
tent, it is the only entity with any authority to issue a
patent. And the right to go to court claiming infringe-
ment is predicated on the PTO having first done so. If the
party had failed to receive a patent from the PTO before
filing its infringement suit, a court considering the action
would have to dismiss the action for failure to state a
4 WYANDOT NATION OF KANSAS v. UNITED STATES
claim because the plaintiff could not demonstrate the
underlying property right necessary to allege infringe-
ment of that right. Similarly, here, the court cannot
provide the requested remedy because the Wyandot
Nation of Kansas has not been recognized by the Secre-
tary of the Interior and placed on the Secretary’s list of
federally-recognized tribes; the Wyandot Nation of Kan-
sas, therefore, has failed to state a claim on which relief
can be granted because it cannot demonstrate that it has
met the conditions precedent to pursuing its claim. The
statutory right to an accounting is tied to the Secretary of
the Interior’s list of federally recognized tribal entities
and cannot be authorized for a tribe that is not on that
list.
While I agree with the majority that reference to tra-
ditional notions of “exhaustion” does not really fit the
circumstances here, neither do notions of primary juris-
diction.
I would affirm because the Wyandot Nation of Kansas
has not asserted a claim upon which relief can be granted
by the claims court.