00-3465Miami Nation of Indians of Indiana, Inc. v. United States Department of the Interior

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“By promulgating … regulations the executive brings the tribal recognition process within the scope of the Administrative Procedure Act. … And the Act has been interpreted (1) to require agencies, on pain of being found to have acted arbitrarily and capriciously, to comply with their own regulations (whether formal, as here, or common-law-type doctrines) until the regulations are altered by proper procedures… and (2) to make compliance with the regulations judicially reviewable, provided there is law to apply to determine compliance … as there is if despite the lack of statutory criteria, the agency’s regulation establishes criteria that are “legal” in the sense not just of being obligatory but of being the kind of criteria that courts are capable of applying… The only question is whether the Board misapplied the doctrine in the present case. This is a question for us because the Board is bound by its own rules until it changes them .. [T]he requirement of reasoned decisionmaking – the requirement that the APA places on agencies and that sets them apart from legislatures – implies that an agency may not deviate from its regulations without a reason, unlike a legislature, which can repeal a statute without giving a reason for its change of heart. … The political-questions doctrine is therefore not in play and does not prevent the Miami Nation from arguing that the Department of the Interior committed error in the interpretation or application of the regulation.”

“Probably by 1940 and certainly by 1992, the Miami Nation had ceased to be a tribe in any reasonable sense. It had no structure. It was a group of people united by nothing more than common descent, with no territory, no significant governance, and only the loosest of social ties. To what extent and in what sense this long-drawn-out process of dissolution of the tribe of 1854 should be called ‘voluntary’ can be debated (there is no contention that it was coerced), but that it amounted to abandonment cannot be doubted. The federal benefits for the sake of which recognition is sought are extended to tribes, not to individuals, so if there is no tribe, for whatever reason, there is nothing to recognize. Greene v. Babbitt, 64 F.3d 1266, 1269 (9th Cir. 1995); Felix S. Cohen’s Handbook of Federal Indian Law, supra, at 1. Recognition in such a case would merely confer windfalls on the members of a nonexistent entity.”

Affirmed.

Appeal from the United States District Court for the Northern District of Indiana, Miller, J., Posner, J.