‘Where Lies The Final Harbor, Whence We Unmoor No More?”

The United States District Court for the District of Columbia (Chief Judge Boasberg) granted a motion to dismiss an effort to achieve tribal recognition

Confronted with the daunting task of choosing a whaling ship on which to voyage, Ishmael selects the long-seasoned and weather-stained Pequod. “Pequod, you will no doubt remember, was the name of a celebrated tribe of Massachusetts Indians,” he says, “now extinct as the ancient Medes.” Herman Melville, Moby-Dick 77 (Penguin Books 1992) (1851).

As reliable a narrator as Ishmael usually was, here he was wrong twice over. It turns out the Pequots are neither local to Massachusetts nor extinct. In fact, they have been living in Connecticut for centuries, and one group of them — the Historical Eastern Pequot Tribe — has been attempting to gain federal recognition for over fifty years. Its most recent attempt came in 2016, when the Tribe wrote to the Department of the Interior’s Office of Federal Acknowledgment, seeking recognition. OFA wrote back, explaining that the Tribe was ineligible. The Tribe tried to appeal, and an administrative law judge concluded — in an opinion styled a “Recommended Decision” — that the Tribe’s purported appeal should be dismissed.

Six years later, the Tribe filed this action against OFA. It challenges not Melville’s apparent spelling, geography, and history errors, but rather the Department’s alleged delay in issuing a final determination on the ALJ’s Recommended Decision, which, it says, is unreasonable under the Administrative Procedure Act. Plaintiff also asks the Court to review “any decision deemed final” under the APA’s arbitrary-and-capricious standard and to order “the Bureau of Indian Affairs to acknowledge that [Plaintiff is] an American Indian tribe.” ECF No. 17 (Second Am. Compl.) at 5. OFA now moves to dismiss, advancing both jurisdictional and merits arguments. As the Court concludes that Plaintiff lacks standing to bring an unreasonable delay challenge and that its other two claims are deficient, it will grant the Motion.

Editor’s note: my favorite passage from Melville’s immortal classic

There is no steady unretracing progress in this life; we do not advance through fixed gradations, and at the last one pause:–through infancy’s unconscious spell, boyhood’s thoughtless faith, adolescence’ doubt (the common doom), then scepticism, then disbelief, resting at last in manhood’s pondering repose of If. But once gone through, we trace the round again; and are infants, boys, and men, and Ifs eternally. Where lies the final harbor, whence we unmoor no more? In what rapt ether sails the world, of which the weariest will never weary? Where is the foundling’s father hidden? Our souls are like those orphans whose unwedded mothers die in bearing them: the secret of our paternity lies in their grave, and we must there to learn it.

(Mike Frisch)