 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued September 18, 2012            Decided March 1, 2013

                       No. 11-5328

                MUWEKMA OHLONE TRIBE,
                     APPELLANT

                             v.

 KENNETH LEE SALAZAR, SECRETARY OF THE INTERIOR, AND
      KEVIN K. WASHBURN, ASSISTANT SECRETARY
                FOR INDIAN AFFAIRS,
                     APPELLEES


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:03-cv-01231)


   Colin Cloud Hampson argued the cause for appellant.
Harry R. Sachse and William F. Stephens were on brief.

     Maggie B. Smith, Attorney, United States Department of
Justice, argued the cause for appellees. Robert P. Stockman,
Attorney, was on brief.

    Before: HENDERSON, ROGERS and TATEL, Circuit Judges.

    Opinion for the Court filed by Circuit Judge HENDERSON.
                              2
     KAREN LECRAFT HENDERSON, Circuit Judge: The
Muwekma Ohlone Tribe (Muwekma) petitions this court to
order the Secretary of the United States Department of the
Interior and the Assistant Secretary for Indian Affairs
(collectively Interior) to recognize it as an Indian tribe.
Muwekma filed a “petition for acknowledgement” with
Interior in 1995, which Interior denied in 2002. Muwekma
challenged the denial in district court and, after Interior
provided further explanation on remand, the district court
granted Interior’s cross-motion for summary judgment and
denied Muwekma’s summary judgment motion. Muwekma
Ohlone Tribe v. Salazar, 813 F. Supp. 2d 170 (D.D.C. 2011)
(Muwekma 2011). For the reasons set forth below, we affirm
the district court.
                              I.
     Federal recognition is a prerequisite to the receipt of
various services and benefits available only to Indian tribes.
25 C.F.R. § 83.2. During much of our nation’s history, the
Congress recognized Indian tribes by treaty. See Golden Hill
Paugussett Tribe of Indians v. Weicker, 39 F.3d 51, 57 (2d
Cir. 1994). In 1871, this practice ended and tribal recognition
occurred through executive orders and legislation. Roberto
Iraola, The Administrative Tribal Recognition Process and the
Courts, 38 AKRON L. REV. 867, 871 (2005).
    After the passage of the Indian Reorganization Act of
1934, Pub. L. No. 73-383, 48 Stat. 984 (codified as amended
at 25 U.S.C. §§ 461 et seq.), “recognition proceedings were
necessary because the benefits created by it were made
available only to descendants of ‘recognized’ Indian tribes.”
Golden Hill, 39 F.3d at 57. In 1934, Interior began conducting
proceedings to determine if a tribe should be recognized. Id.
From 1934 to 1978, Interior made recognition determinations
on an ad hoc basis. Id.
                                  3
      In 1978, pursuant to broad authority delegated by the
Congress,1 Interior promulgated regulations establishing a
formal recognition procedure (Part 83 process). Id. (citing 25
C.F.R. §§ 83.1-83.13). The Part 83 process is “intended to
apply to groups that can establish a substantially continuous
tribal existence and which have functioned as autonomous
entities throughout history until the present.” 25 C.F.R.
§ 83.3(a). It is available to groups that are not “already
acknowledged” or “receiving services from the Bureau of
Indian Affairs” (BIA). Id. § 83.3(b).
     To be recognized under the Part 83 process, the
petitioning group “must satisfy” seven criteria by submitting
“thorough explanations and supporting documentation.” Id.
§ 83.6(c). Specifically, it must:
         (a) Establish that it “has been identified as an
             American Indian entity on a substantially
             continuous basis since 1900.” Identification
             must be shown “by other than the petitioner
             itself or its members.”

         (b) Establish that “[a] predominant portion” of its
             members “comprises a distinct community”
             that has existed “from historical times until the
             present.”

         (c) Establish that it “has maintained political
             influence or authority over its members as an

     1
       See Miami Nation of Indians of Ind., Inc. v. U.S. Dep’t of the
Interior, 255 F.3d 342, 345 (7th Cir. 2001), cert. denied, 534 U.S.
1129 (2002) (“Congress has delegated to the executive branch the
power of recognition of Indian tribes without setting forth any
criteria to guide the exercise of that power.”) (citing 25 U.S.C. §§ 2,
9).
                               4
         autonomous entity from historical times until
         the present.”

     (d) Provide either a copy of its current governing
         document, including membership criteria, or a
         description of its governing procedures and
         membership criteria in lieu of a document.

     (e) Establish that its “membership consists of
         individuals who descend from a historical
         Indian tribe or from historical Indian tribes
         which combined and functioned as a single
         autonomous political entity.”

     (f) Establish that its “membership . . . is composed
         principally of persons who are not members of
         any acknowledged North American Indian
         tribe.”

     (g) Establish that “[n]either the petitioner nor its
         members are the subject of congressional
         legislation that has expressly terminated or
         forbidden the Federal relationship.”

Id. § 83.7(a)-(g). The group must show that “available
evidence establishes a reasonable likelihood of the validity of
the facts relating to [each] criterion” but conclusive proof is
not required. Id. § 83.6(d). Interior must “take into account
historical situations and time periods for which evidence is
demonstrably limited or not available.” Id. § 83.6(e).
     Section 83.8(d) relaxes section 83.7’s first three criteria
for a group that was once recognized. Specifically, a
previously recognized group need establish only the following
to satisfy section 83.7(a)-(c): (1) it has been identified “since
the point of last Federal acknowledgement . . . . by such
                               5
sources as the same tribal entity that was previously
acknowledged or as a portion that has evolved from that
entity”; (2) “it comprises a distinct community at present”;
and (3) “political influence or authority is exercised within the
group at present.” Id. § 83.8(d)(1)-(3). Alternatively, if the
group cannot satisfy paragraphs (d)(1) and (d)(3), it “may
demonstrate alternatively that it meets the requirements of the
criteria in § 83.7(a) through (c) from last Federal
acknowledgement until the present.” Id. § 83.8(d)(5). Not
every group must go through the Part 83 process to be
recognized, however; Interior may waive the Part 83 process
if waiver is, in Interior’s view, “in the best interest of the
Indians.” Id. § 1.2.
     After Interior receives a petition, its Office of Federal
Acknowledgement (OFA) evaluates it and prepares a
summary for the Assistant Secretary for Indian Affairs
(Assistant Secretary), who issues a “proposed finding.” Id.
§ 83.10(h). The group may respond, submit additional
documentation and request an on-the-record meeting with the
Assistant Secretary. Id. § 83.10(i)-(k). After review, the
Assistant Secretary issues a “final determination” that either
recognizes the group as a tribe or denies the petition. Id.
§ 83.10(l)(2). The group may then request reconsideration
with the Interior Board of Indian Appeals. See id.
§ 83.11(a)(1). If it does not file the request within ninety days
after the Final Determination is published in the Federal
Register, “the Assistant Secretary’s decision shall be final for
[Interior].” Id. § 83.11(a)(2).
     Muwekma is a group of American Indians from the San
Francisco Bay area. Its members descended from a
previously-recognized tribe called the Verona Band. Both
parties agree that the Verona Band was previously recognized
by the federal government between 1914 and 1927.
Muwekma asserts that nine members of the Verona Band
                               6
were still alive and part of the Muwekma community in 1989
and one remains alive today. Yet there is no evidence that the
Verona Band or Muwekma remained federally recognized
after 1927. Muwekma acknowledges that “sometime after
1927 [Interior] ceased recognizing the Tribe for some
purposes and substantially reduced the benefits, services and
protection provided to the Tribe.” Compl. ¶ 2. Moreover,
Muwekma has never appeared on the list of federally-
recognized tribes that Interior began publishing approximately
every three years beginning in 1979 and now publishes
annually. See, e.g., Indian Tribal Entities That Have a
Government-to-Government Relationship with the United
States, 44 Fed. Reg. 7235 (Feb. 6, 1979); 25 U.S.C. § 479a-1.
     In 1989, Muwekma submitted to Interior a letter of intent
to petition to become a recognized Indian tribe.2 Interior
directed Muwekma to submit a petition under the Part 83
process, which Muwekma filed in 1995. After a preliminary
review, Interior concluded that, because the Verona Band had
previously been recognized and Muwekma directly descended
from the Verona Band, it would evaluate Muwekma’s petition
under the relaxed section 83.8 criteria for a previously
recognized tribe. In 1998, Interior placed Muwekma’s petition
on the list of petitions ready for consideration.
     One year later, Muwekma brought an action in district
court under the Administrative Procedure Act (APA), 5
U.S.C. §§ 551 et seq., to compel Interior to complete its
review within one year. See Muwekma Tribe v. Babbitt, 133
F. Supp. 2d 30, 31 (D.D.C. 2000). The court granted partial
summary judgment in favor of Muwekma, ordering Interior to
“submit to the court by July 28, 2000 a proposed schedule for

    2
      Muwekma concedes that in 1989 it was not receiving federal
benefits available to a recognized tribe.
                               7
resolving [Muwekma’s] petition.” Id. at 41-42. After Interior
submitted a proposed schedule, which schedule did not
include a date by which it intended to decide Muwekma’s
petition, the court ordered Interior to, inter alia, act on the
petition by March 11, 2002. Muwekma Tribe v. Norton, 206
F. Supp. 2d 1, 2 (D.D.C. 2002). On July 30, 2001, Interior
issued a proposed finding rejecting Muwekma’s recognition
petition. In response, Muwekma submitted comments and
additional evidence. On September 6, 2002 (after receiving
several deadline extensions from the district court), Interior
issued a 184-page Final Determination, adopting the
conclusions of the proposed finding and providing additional
analysis.
     The Final Determination found that Muwekma failed to
satisfy the three criteria set forth in section 83.7(a) through
(c), as modified by section 83.8. According to Interior,
Muwekma failed to satisfy criterion (a)—that it has been
identified as an American Indian entity on a substantially
continuous basis since 1927—because “the petitioning group
was not identified as an Indian entity for a period of almost
four decades after 1927, and for only a 6-year period during
the 55 years between 1927 and 1982.”3 Joint Appendix (JA)
1506. It failed to satisfy criterion (b)—that it comprises a
distinct community at present—because, while it showed
some evidence of a distinct community existing as late as
1950, it failed to submit “documents or oral histories dealing
with the present day.” JA 1560. It failed to satisfy criterion
(c)—that it exercises political authority over members from

    3
       Interior concluded that Muwekma submitted sufficient
evidence to be “identified as an Indian entity” from 1965 through
1971 because “Rupert and Jeannette Henry Costo of the [American
Indian Health Services] identified a contemporary Ohlone group
between 1965 and 1971.” JA 1502.
                              8
its last recognition to the present—because, inter alia,
“[s]ince 1990, participation in [Muwekma’s] activities has
been mostly by a core group of 20 individuals” and “[a]
predominant portion of [its] membership has not participated
in the group’s activities.” JA 1600.
     On June 6, 2003, Muwekma filed a second action in
district court, challenging Interior’s determination. Muwekma
brought six causes of action, claiming that Interior’s Final
Determination (1) “unlawfully withdrew . . . recognition” of
Muwekma; (2) violated Muwekma’s right to equal protection;
(3) violated Muwekma’s right to due process; (4) was
“arbitrary and capricious as a result of bias”; (5) was
produced by conflicted Interior Staff in violation of 5 U.S.C.
§ 554(d); and (6) “was arbitrary and capricious because of
failure to apply the standards required by the department’s
regulations, misinterpretation of law, and failure to follow
well-established department precedent established in other
recognition cases.” Compl. ¶¶ 34-47.
     Muwekma’s principal claim was that Interior denied
Muwekma equal protection by requiring Muwekma to
proceed under the Part 83 process despite summarily
recognizing two other Indian tribes—the Ione Band of Miwok
(Ione) and the Lower Lake Rancheria of California (Lower
Lake)—outside the Part 83 process. See Muwekma Ohlone
Tribe v. Kempthorne, 452 F. Supp. 2d 105, 110-11 (D.D.C.
2006). Muwekma contended that it, like the Ione and Lower
Lake tribes, was previously recognized and therefore entitled
to the same summary approval granted to the latter two tribes.
After both parties moved for summary judgment, the district
court explained that it was “unable to discern [Interior’s]
rationale for requiring Muwekma to proceed through the Part
83 tribal acknowledgment procedures while allowing other
tribes that appear to be similarly situated to bypass the
procedures altogether.” Id. at 125. Accordingly, it remanded
                                9
the case to Interior to supplement the record with a “detailed
explanation of the reasons for its refusal to waive the Part 83
procedures.” Id. at 124.
     On November 27, 2006, Interior filed a Supplemental
Explanation with the district court. Interior explained that its
decisions to summarily recognize Ione and Lower Lake “were
not based merely on a finding that those groups were
previously recognized by the Federal Government at some
time in the past.” JA 106. Rather, unlike Muwekma, both Ione
and Lower Lake had government-to-government interactions
with the federal government decades after 1927. For example,
the government held land in trust for Lower Lake until 1956,
having surveyed Lower Lake’s population in 1950 and
consulted with Indians living on the land about selling it in
1953. Additionally, in 1980, Interior considered including
Lower Lake on the list of federally-recognized tribes.
Regarding the Ione tribe, in 1941, the government considered
Ione’s petition for the purchase of land; in 1970, two Ione
members asked Interior about the status of their tribal land;
and in 1972, California Indian Legal Services successfully
brought a quiet title action on behalf of Ione which caused
Interior to issue a letter “accept[ing] by relinquishment of title
or gift [a] parcel of land to be held in trust for the Ione Band
of Miwok Indians.” JA 111-12, 524-25. By contrast, Interior
explained, “there is no evidence of any Federal dealings with
a Muwekma group or Verona band after 1927.” JA 107
(emphasis added). As the district court summarized, “[u]nlike
the evidence proffered by the Muwekma, which at best
demonstrated interactions between the federal government
and individuals that descended from the Verona Band, the
evidence in the supplemental administrative record reflects
dealings between the federal government and the Ione and
                                 10
Lower Lake tribes as entities.” Muwekma 2011, 813 F. Supp.
2d at 199 (emphasis in original).4
     Both parties again moved for summary judgment. After a
procedural dispute over whether the district court’s earlier
order constituted the law of the case on the “similarly
situated” issue,5 on September 28, 2011, the district court
granted Interior’s cross-motion for summary judgment. Id. at
199.
                                 II.
    We review a grant of summary judgment de novo. Bush
v. District of Columbia, 595 F.3d 384, 387 (D.C. Cir. 2010).

    4
       Interior also noted that Ione had pre-1927 dealings with the
federal government involving the purchase of land. Interior
explained that the government attempted to purchase land for Ione
in the 1910s and 1920s and that, in 1927, an Interior Superintendent
stated that he “had ‘been considering the purchase of a tract for the
Indians at Ione for the past several years.’ ” JA 111.
    5
        On September 30, 2008, after the parties cross-moved for
summary judgment, the district court criticized the Supplemental
Explanation, stating that its earlier order had found that Muwekma
was similarly situated to Ione and Lower Lake and that the finding
arguably constituted the law of the case. The district court then
stayed the motions for summary judgment and ordered the parties
to brief whether the “similarly situated” finding was the law of the
case and, if so, whether there was a compelling reason to depart
from it. In subsequently granting summary judgment to Interior, the
district court acknowledged that “[u]pon further reflection, the
Court[’s] September 30, 2008 Order incorrectly represented the
ruling in its September 21, 2006 Memorandum Opinion. . . .
[which] did not decide the question of whether the Muwekma was
‘similarly situated’ to the Lower Lake and Ione.” Muwekma 2011,
813 F. Supp. 2d at 197.
                              11
Summary judgment is appropriate only when “ ‘there is no
genuine issue as to any material fact.’ ” McCready v.
Nicholson, 465 F.3d 1, 7 (D.C. Cir. 2006) (quoting Fed. R.
Civ. P. 56(c)). A genuine issue of material fact exists if the
evidence, “ ‘viewed in a light most favorable to the
nonmoving party,’ ” could support a reasonable jury’s verdict
for the non-moving party. Id. (quoting Tao v. Freeh, 27 F.3d
635, 638 (D.C. Cir. 1994)).
    Muwekma mounts several challenges to the district
court’s judgment which we discuss seriatim.
               A. Equal Protection and APA Claims
     Muwekma asserts that Interior denied it the equal
protection guaranteed by the Fifth Amendment to the United
States Constitution because Interior summarily recognized
Lower Lake and Ione outside the Part 83 process but did not
do the same for Muwekma. Muwekma’s APA claim similarly
alleges that Interior’s failure to recognize Muwekma was
arbitrary and capricious because it failed to follow Interior
precedent established in other recognition cases.
     To prevail on an equal protection claim, the plaintiff must
show that the government has treated it differently from a
similarly situated party and that the government’s explanation
for the differing treatment “does not satisfy the relevant level
of scrutiny.” Settles v. U.S. Parole Comm’n, 429 F.3d 1098,
1102 (D.C. Cir. 2005). Here, the relevant level of scrutiny is
rational basis because Interior’s action does not target a
suspect class or burden a fundamental right. Tucker v.
Branker, 142 F.3d 1294, 1300 (D.C. Cir. 1998) (“A . . .
classification that does not burden either a fundamental right
or a suspect class must be reviewed under the rational basis
test.”); see also Kahawaiolaa v. Norton, 386 F.3d 1271, 1279
(9th Cir. 2004), cert. denied, 545 U.S. 1114 (2005) (“[T]he
                               12
recognition of Indian tribes remains a political, rather than
racial determination. Recognition of political entities, unlike
classifications made on the basis of race or national origin[,]
are not subject to heightened scrutiny. Consequently, we
apply rational basis review . . . .”). We apply a similar
analysis under the APA. Agency action is arbitrary and
capricious if “the agency offers insufficient reasons for
treating similar situations differently.” Cnty. of Los Angeles v.
Shalala, 192 F.3d 1005, 1022 (D.C. Cir. 1999) (quotation
marks and brackets omitted). “If [an] agency makes an
exception in one case, then it must either make an exception
in a similar case or point to a relevant distinction between the
two cases.” Westar Energy, Inc. v. FERC, 473 F.3d 1239,
1241 (D.C. Cir. 2007). Because Muwekma is not similarly
situated to Lower Lake and Ione, its constitutional and APA
claims fail.
     Muwekma asserts that, “[l]ike Lower Lake [and] Ione . . .
, Muwekma (1) was federally recognized during the 20th
century . . . ; (2) was never terminated by any Act of Congress
or court order; (3) for some unknown reason was forgotten
and mistakenly left off of the BIA’s list of recognized tribes;
and (4) continued to exist and to seek reaffirmation.” Br. of
Appellant 36. As Interior’s twenty-one-page Supplemental
Explanation makes clear, however, the Lower Lake and Ione
tribes, unlike Muwekma, had multiple post-1927 government-
to-government interactions with the United States. We agree
with the district court’s conclusion that Interior “viewed its
interactions with the Ione and Lower Lake tribes as evidence
that the federal government dealt with these entities as
tribes.” Muwekma 2011, 813 F. Supp. 2d at 199 (emphasis
added).
     Interior’s emphasis on government-to-government
interaction as a distinguishing characteristic is not arbitrary.
Indeed, government-to-government interaction is a common
                                 13
characteristic of a recognized tribe. See, e.g., 25 C.F.R. § 83.1
(defining federal acknowledgement of tribe as “action by the
Federal government . . . indicating clearly the recognition of a
relationship between that entity and the United States”); id.
§ 83.2 (federally recognized tribes obtain immunities and
privileges “by virtue of their government-to-government
relationship with the United States”); id. § 83.7(c) (group
seeking tribal recognition must have “maintained political
influence or authority over its members as an autonomous
entity”). Interior therefore exercised its broad authority
properly by making exceptions for Ione and Lower Lake but
not for Muwekma on this basis. See 25 C.F.R. § 1.2
(authorizing exception to Part 83 process “in all cases where
permitted by law and the Secretary finds that such waiver or
exception is in the best interest of the Indians”).
     Muwekma emphasizes that its members enrolled in the
California Claims Act in the 1930s, 1950s and 1970s6 and that
Muwekma children attended BIA schools in the 1930s and
1940s. Like the district court, however, we believe that
interaction between Muwekma members and the federal
government does not equate to tribal interaction with the

    6
       The California Claims Act, Pub. L. 70-423, 45 Stat. 602
(1928) (codified as amended at 25 U.S.C. §§ 651 et seq.) authorized
the attorney general of California to bring suit in the federal court
of claims on behalf of the “Indians of California,” defined as “all
Indians who were residing in the State of California on June 1,
1852, and their descendants now living in said State.” Id. § 1, 45
Stat. at 602. The Act originally provided that “[a]ny person
claiming to be entitled to enrollment may within two years after the
approval of this Act, make an application in writing to the Secretary
of the Interior for enrollment.” Id. § 7, 45 Stat. at 603 (emphasis
added). Section 7 was repeatedly amended to allow subsequent
revisions to the roll of individually enrolled Indians. See 25 U.S.C.
§ 657.
                                  14
federal government on a government-to-government basis.
Muwekma points to its tribal community activities and social
interaction, including its “formal constitution,”7 the fact that
ninety-nine percent of its members are descendants of the
Verona Band and the fact that Verona Band members were
involved in Muwekma activities into the 2000s. Muwekma
points out several purported weaknesses in Ione’s and Lower
Lake’s applications, including certain gaps in evidence,
conflicting membership lists and genealogy and the fact that
Ione did not have a formal constitution until after Interior
reaffirmed it as a tribe in 1994. Yet none of these points
addresses the key distinction between Muwekma and Ione and
Lower Lake: government-to-government interactions.
     Muwekma alternatively contends that we cannot consider
Interior’s Supplemental Explanation’s explication of the
differences between Muwekma on the one hand and Ione and
Lower Lake on the other because it represents a post hoc
rationale. It is true that “an agency’s action must be upheld, if
at all, on the basis articulated by the agency itself.” Motor
Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 50 (1983). But it is entirely proper for an
agency to provide an explanation if directed to do so on
remand. See, e.g., Burlington Res. Inc. v. FERC, 513 F.3d
242, 244 (D.C. Cir. 2008) (considering agency’s explanation
on remand for its differing treatment of natural gas
producers).8

     7
       While a formal constitution is evidence of at least one of the
Part 83 criteria, see JA 1021 (referring to 25 C.F.R. § 83.7(d)), it is
not dispositive of the recognition inquiry because a tribe must
satisfy all seven Part 83 criteria. See 25 C.F.R. § 83.6(c), (d).
     8
      Muwekma relies on our decision in Food Marketing Institute
v. ICC, 587 F.2d 1285, 1290 (D.C. Cir. 1978), in which we
declared that “[p]ost-hoc rationalizations by the agency on remand
                                 15
    In sum, we agree with the district court that Interior’s
Supplemental Explanation adequately explained why
Muwekma is not similarly situated to Ione or Lower Lake
and, accordingly, Muwekma’s equal protection claim fails.9




are no more permissible than are such arguments when raised by
appellate counsel during judicial review.” But the statement does
not mean that an agency cannot explain itself on remand. Rather,
Food Marketing Institute simply explains that “we must recognize
the danger that an agency, having reached a particular result, may
become so committed to that result as to resist engaging in any
genuine reconsideration of the issues” and that “[t]he agency’s
action on remand must be more than a barren exercise of supplying
reasons to support a pre-ordained result.” Id. Muwekma contends
that Interior ran afoul of Food Marketing Institute because the
reasons it gave in its Supplemental Explanation for distinguishing
Ione and Lower Lake were not listed in the recognition letters sent
to those tribes. The letters, however, did not purport to describe all
of the factors Interior considered in reaching its decisions.
     9
       Muwekma also refers to a 2012 press release issued by
Interior in which it summarily reaffirmed the Tejon tribe after
concluding that it had erroneously omitted Tejon from the list of
recognized Indian tribes. Press Release, United States Dep’t of the
Interior, Echo Hawk Issues Reaffirmation of the Tejon Indian
Tribe’s Government-to-Government Status (Jan. 3, 2012), available
at http://bia.gov/idc/groups/public/documents/text/idc015898.pdf.
The press release on its face does not purport to explain Interior’s
reasoning regarding Tejon. On the other hand, a separate Interior
memorandum explains that “[i]t was not necessary for the Tejon
Indian Tribe to go through the Federal acknowledgement process . .
. because its government-to-government relationship had neither
lapsed nor been administratively terminated.” Memorandum from
Interior Assistant Secretary, Indian Affairs, to Regional Director,
Pacific Region & Deputy Director, Office of Indian Services on
Reaffirmation of Federal Recognition of Tejon Indian Tribe 1 (Apr.
                               16
           B. Termination of Recognition Claim
     Muwekma next argues that, because it is the direct
descendant of the Verona Band, Interior’s finding that
Muwekma is not an Indian tribe is the equivalent of
terminating Muwekma’s recognition. It argues that “only
Congress has the authority to terminate a tribe’s federal
recognition.” Br. of Appellant        21. The district court
concluded that this claim is barred by the statute of
limitations. We disagree that the claim is time-barred, but find
that it fails on the merits.
      28 U.S.C. § 2401(a) provides that “every civil action
commenced against the United States shall be barred unless
the complaint is filed within six years after the right of action
first accrues.” A claim accrues when a party can “institute and
maintain a suit in court” once it “has exhausted all
administrative remedies whose exhaustion is a prerequisite to
suit.” Spannaus v. U.S. Dep’t of Justice, 824 F.2d 52, 56-57
(D.C. Cir. 1987). The court lacks subject matter jurisdiction to
hear a claim barred by section 2401(a). Id. at 55.
      In James v. U.S. Department of Health & Human
Services, 824 F.2d 1132 (D.C. Cir. 1987), a faction of an
unrecognized Indian group “took the position that the [group]
. . . was already federally recognized” and “therefore did not
file a petition for federal acknowledgement, but rather sought
. . . a declaration ordering the Department of the Interior to
add the [group] to the list of federally recognized tribes.” Id.
at 1136-37. We affirmed the district court’s dismissal of the
complaint for failure to exhaust administrative remedies,
explaining that “[t]he purpose of the regulatory scheme set up


24, 2012), available at http://www.bia.gov/cs/groups/public/
documents/text/idc-018480.pdf (emphasis added).
                               17
by the Secretary of the Interior is to determine which Indian
groups exist as tribes[ and t]hat purpose would be frustrated if
the Judicial Branch made initial determinations of whether
groups have been recognized previously or whether
conditions for recognition currently exist.” Id. at 1137
(citation omitted). We further noted that dismissal served the
primary purposes of exhaustion, to wit: “allowing the agency
the opportunity in the first instance to apply its expertise . . .
and correct its own errors,” “aid[ing] judicial review” through
factual development and “promot[ing] judicial economy by
avoiding needless repetition of administrative and judicial
factfinding, and by perhaps avoiding the necessity of any
judicial involvement at all if the parties successfully vindicate
their claims before the agency.” Id. at 1137-38.
     The district court found that Muwekma’s termination of
recognition claim was distinct from a claim under the Part 83
process and therefore was not subject to administrative
exhaustion. We disagree. In fact, the Part 83 process applies
to a petition of a previously recognized tribe that seeks current
recognition on that basis. See 25 C.F.R. § 83.8(a)
(“Unambiguous previous Federal acknowledgment is
acceptable evidence of the tribal character of a petitioner to
the date of the last such previous acknowledgment.”); see also
James, 824 F.2d at 1138 (“The Department of the Interior’s
Branch of Acknowledgment and Research was established for
determining whether groups seeking tribal recognition
actually constitute Indian tribes and presumably to determine
which tribes have previously obtained federal recognition”).
The Part 83 process allowed Interior to engage in factfinding
bearing on Muwekma’s termination of recognition claim,
provided Interior an opportunity to correct any error in not
previously placing Muwekma’s name on tribal recognition
lists and potentially could have resolved this case without
judicial involvement. Accordingly, we find that Muwekma’s
                               18
termination of recognition claim was subject to administrative
exhaustion and thus did not accrue until September 6, 2002
when Interior issued its Final Determination. Therefore,
Muwekma’s claim, asserted in its 2003 complaint, is not
barred by the statute of limitations.
     Nevertheless, Muwekma’s termination claim fails on the
merits because Interior did not terminate Muwekma’s
recognition. While Muwekma—like the Verona Band—may
have previously been a recognized tribe, a once-recognized
tribe can fade away. Miami Nation of Indians of Ind., Inc. v.
U.S. Dep’t of the Interior, 255 F.3d 342, 346 (7th Cir. 2001)
(“It is . . . obvious that Indian nations, like foreign nations,
can disappear over time . . . whether through conquest, or
voluntary absorption into a larger entity, or fission, or
dissolution, or movement of population.”), cert. denied, 534
U.S. 1129 (2002). Interior found that Muwekma had, in
effect, faded away. There is no dispute that Muwekma was
recognized in 1927 (as the Verona Band). But, when
Muwekma contacted Interior in 1989 via the petitioning
process, it was not on Interior’s list of recognized Indian
tribes nor was it receiving any services or benefits from the
government. In addition, Interior concluded that Muwekma
did not merit current recognition under the Part 83 process
based on its failure to establish that it had exercised political
authority over members, see 25 C.F.R. § 83.8(d)(3), and the
fact that it had not been identified as an Indian tribe for an
extended period of time, see id. § 83.8(d)(1), and did not
“comprise[] a distinct community at present” (since 1984),
see id. § 83.8(d)(2). Accordingly, Muwekma’s termination of
recognition claim fails.
                   C. Due Process Claim
     Muwekma argues that “as a previously recognized tribe”
it had a due process right to a “formal adjudicatory hearing in
                               19
any proceeding that could result in the loss of that
recognition.” Br. of Appellant 44. Muwekma also contends
that Interior violated Muwekma’s due process rights by
improperly allowing Interior staff with a conflict of interest to
evaluate its petition. Both arguments fail.
     A “threshold requirement of a due process claim” is “that
the government has interfered with a cognizable liberty or
property interest.” Hettinga v. United States, 677 F.3d 471,
479-80 (D.C. Cir. 2012) (per curiam), cert. denied, 133 S. Ct.
860 (2013). But, for the same reasons Muwekma’s
termination of recognition claim fails, whatever due process
interest Muwekma might have had as a previously-recognized
tribe disappeared because that previously-recognized tribe no
longer exists. See Miami Nation, 255 F.3d at 346; see also
United States v. 8 Gilcrease Lane, Quincy, Fla. 32351, 638
F.3d 297, 300 (D.C. Cir. 2011) (individual no longer
possesses due process right to challenge seizure of property
that is “voluntarily forfeited”). Moreover, as discussed above,
because Muwekma was not receiving any government
services or benefits in 1989 when it began the petitioning
process, Interior’s Final Determination did not cut off
government services or benefits. Cf. Greene v. Babbitt, 64
F.3d 1266, 1271-73 (9th Cir. 1995) (finding due process
interest in tribal financial benefits that were cut off); see also
Lyng v. Payne, 476 U.S. 926, 942 (1986) (“We have never
held that applicants for benefits, as distinct from those already
receiving them, have a legitimate claim of entitlement
protected by the Due Process Clause . . . .”); Bd. of Regents of
State Colls. v. Roth, 408 U.S. 564, 576 (1972) (due process
“is a safeguard of the security of interests that a person has
already acquired in specific benefits”) (emphasis added).
    Muwekma also asserts that Interior violated the APA by
allowing several Interior lawyers and staff who participated in
defending Interior in litigation brought by Muwekma in 2000
                               20
and 2001 to participate in drafting Interior’s 2002 Final
Determination. Muwekma’s argument is based on 5 U.S.C.
§ 554(d), providing that an agency employee who takes an
adversarial role in one case “may not, in that or a factually
related case, participate or advise in the [agency’s] decision . .
. except as witness or counsel in public proceedings.” Section
554(d), however, applies only to an “adjudication required by
statute to be determined on the record after opportunity for an
agency hearing.” 5 U.S.C. § 554(a) (emphasis added).
Muwekma’s recognition petition did not trigger a statutorily-
mandated hearing. Muwekma argues that “ ‘hearings
necessitated by the Constitution are included in the scope of
hearings that are covered by section 554 of the APA.’ ” Br. of
Appellant 51 (quoting Collord v. U.S. Dep’t of Interior, 154
F.3d 933, 936 (9th Cir. 1998)); see also Wong Yang Sung v.
McGrath, 339 U.S. 33, 50-51 (1950). The Constitution,
however, requires a hearing only if Muwekma can show
deprivation of a property interest. Collord, 154 F.3d at 936
(finding hearing necessary because “[t]he Collords’ mining
and milling site claims are property interests”). Because we
conclude that Muwekma has no cognizable property interest,
its section 554(d) argument fails.
             D. Arbitrary and Capricious Claim
    Finally, Muwekma argues that Interior’s Final
Determination was arbitrary and capricious for several
reasons. We disagree.
     The APA instructs the court to “hold unlawful and set
aside agency action, findings, and conclusions found to be . . .
arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” 5 U.S.C. § 706(2)(A). Although the
scope of review under the arbitrary and capricious standard is
narrow and the court is not empowered to substitute its
judgment for that of the agency, Rural Cellular Ass’n v. FCC,
                              21
588 F.3d 1095, 1105 (D.C. Cir. 2009), the agency must
provide a “ ‘rational connection between the facts found and
the choice made’ ” so as to afford the reviewing court the
opportunity to evaluate the agency’s decision-making process.
State Farm, 463 U.S. at 43 (quoting Burlington Truck Lines,
Inc. v. United States, 371 U.S. 156, 168 (1962)). While “we
have long held that agency determinations based upon highly
complex and technical matters are entitled to great
deference,” Domestic Sec., Inc. v. SEC, 333 F.3d 239, 248
(D.C. Cir. 2003) (quotation marks and brackets omitted), “we
do not defer to the agency’s conclusory or unsupported
suppositions.” McDonnell Douglas Corp. v. U.S. Dep’t of the
Air Force, 375 F.3d 1182, 1187 (D.C. Cir. 2004).
       1. Decade-by-Decade and Conclusive Proof Tests
     Muwekma claims that Interior improperly required it to
“meet a decade-by-decade test for continuity [under 25 C.F.R.
§§ 83.7(a), 83.8(d)(1)] that is not found in the Part 83
regulations,” Br. of Appellant 55, and also required that
Muwekma provide “conclusive proof” rather than merely a
“reasonable likelihood of the validity of the facts relating to
[the Part 83 criteria],” 25 C.F.R. § 83.6(d). Yet nowhere in its
Final Determination does Interior apply such tests. In fact, the
Final Determination repeatedly refers to the “reasonable
likelihood” standard. See JA 1476, 1492, 1495, 1501, 1503.
Additionally, Interior does not claim that Muwekma’s claim
was rejected simply because Muwekma failed to establish
continuity for each decade; rather, Interior found that
Muwekma “was not identified as an Indian entity for a period
of almost four decades after 1927, and for only a 6-year
period during the 55 years between 1927 and 1982.” JA 1506.
While Muwekma cites to peripheral matters (including a
former Interior assistant secretary’s testimony at an unrelated
hearing) that it contends casts doubt on which tests Interior in
fact used, Muwekma has failed to overcome the presumption
                               22
of regularity, that is, that agencies follow their own
regulations. Friends of the Earth, Inc. v. EPA, 446 F.3d 140,
148 (D.C. Cir. 2006); La. Ass’n of Indep. Producers &
Royalty Owners v. FERC, 958 F.2d 1101, 1111 (D.C. Cir.
1992) (per curiam) (“The Coalition cannot, by sheer
multiplication of innuendo, overcome the strong presumption
of agency regularity.”).
         2. Difficulties in Compiling Historical Evidence
     Muwekma also claims that Interior erred because it did
not consider the difficulties “tribes may have in compiling
comprehensive historical evidence” and did not consider
Muwekma’s pre-1927 evidence to close gaps in Muwekma’s
post-1927 evidence. Br. of Appellant 56; see also 25 C.F.R.
§ 83.6(e) (Interior “shall take into account historical situations
and time periods for which evidence is demonstrably limited
or not available”). But Muwekma fails to explain what pre-
1927 evidence is relevant and how it would have explained
post-1927 record deficiencies. It appears Muwekma’s
argument is that Interior should have considered the fact that
California tribes suffered a “particularly horrible experience”
and that Muwekma lacked a “landbase.” Muwekma 2011, 813
F. Supp. 2d at 192 (quotation marks omitted). But as the
district court found, Muwekma failed to explain how this
history affected its ability to retain documentation of its
existence after 1927. Id. at 194. Muwekma complains that
“[i]n following this regulatory rule in a decision for another
tribe, Interior accepted evidence about an influenza pandemic
and the loss of the tribe’s reservation, relying on those
hardships (from the years 1918 to 1928) to excuse the tribe’s
‘administrative obscurity’ in the later years 1940 until 1968.”
Br. of Appellant 56 (citing JA 599). But it is reasonable for
Interior to relax evidentiary rules during the years following a
pandemic inasmuch as the demographic trauma suffered by
                                 23
the tribe during the pandemic likely inhibited evidence
collection. Muwekma presents no comparable evidence.
               3. Provision of Educational Services
     Muwekma further asserts that Interior arbitrarily rejected
the fact that Muwekma children attended BIA schools in the
1930s and 1940s as evidence of Muwekma’s identification by
an external source. See 25 C.F.R. § 83.7(a).10 Interior
explained, however, that it rejected this evidence because
school admission did not require tribal membership.
Muwekma argues that Interior’s rejection of this evidence is
inconsistent with its consideration of similar evidence
submitted by the Cowlitz and the Ione tribes. Specifically,
Interior determined that Cowlitz had not been absorbed into
surrounding tribes because it received services from the
federal government, including “attendance by Cowlitz
children at BIA operated schools.” Record of Decision for the
Cowlitz Indian Tribe, available at http://www.bia.gov/idc/
groups/mywcsp/documents/text/idc012719.pdf at 99 (Dec. 17,
2010). But Interior’s Cowlitz decision relied in part on a BIA
superintendent’s letter to a BIA-operated school asking about
the welfare of Cowlitz students who, he explained, were
under his jurisdiction. Id. This fact, plainly probative of
external identification, distinguishes Cowlitz from Muwekma.
     With respect to Ione, Muwekma contends that “[w]hen
Interior officials sought to determine in 1970 if Ione had ever
been federally recognized, one of the first questions Interior

    10
        25 C.F.R. § 83.8(d), which modifies 25 C.F.R. § 83.7(a) for
previously recognized tribes, requires, inter alia, that a group show
it has been identified by an outside source “since the point of last
Federal acknowledgement. . . . as the same tribal entity that was
previously acknowledged or as a portion that has evolved from that
entity.”
                                24
asked was whether the BIA ever accepted Ione children in its
schools.” Muwekma cites a letter in which Interior asked Ione
a number of different questions pertaining to federal
recognition, including: “Has the Bureau of Indian Affairs
extended services to them at any time, accepted their children
in Bureau schools or supplied JOM payments11 for them?” JA
532. The letter does not state that evidence of school
attendance, without more, is probative. More importantly, the
letter was written in 1973—years before Interior promulgated
Part 83.
                     4. California Claims Act
     Muwekma asserts that Interior erroneously rejected the
fact that its members or their ancestors enrolled in the
California Claims Act, see supra n.6, as evidence that
Muwekma had been externally identified. We agree with the
district court that this evidence does not constitute external
identification of Muwekma. Muwekma 2011, 813 F. Supp. 2d
at 192. Enrollment in the California Claims Act did not
require tribal affiliation. Instead, it was available to “all
Indians who were residing in the State of California on June
1, 1852, and their descendants now living in said State.” 25
U.S.C. § 651. Muwekma claims that, as a matter of practice,
tribal affiliation was required because applicants had to
answer the following question: “What is your degree of
Indian blood and to what Tribe or Band of Indians of the State
    11
        “JOM payments” refers to the Johnson-O’Malley Act of
1934, Pub. L. No. 73-167, 48 Stat. 596 (codified as amended at 25
U.S.C. § 452-54), which authorizes the Interior Secretary to, inter
alia, “enter into a contract or contracts . . . and to expend under
such contract or contracts, moneys appropriated by Congress for the
education, medical attention, agricultural assistance, and social
welfare, including relief of distress, of Indians in [a] State or
Territory.” 25 U.S.C. § 452.
                                 25
of California do you belong?” See JA 1478. But Interior
reasonably interpreted this question to refer to tribal ancestry,
not to contemporary membership. Interior’s interpretation is
bolstered by two approved applications that listed the tribe or
band as “unknown.” Interior reasoned that “an individual’s
active tribal membership would not be unknown to him or
her, while his or her specific tribal ancestry back to 1852
could be unknown.” JA 1478-79. We agree with the district
court that Interior’s explanation is not “wanting in logic.”
Muwekma 2011, 813 F. Supp. 2d at 192-93.
               5. Survival of Verona Band Members
     Muwekma argues that Interior erroneously failed to
consider the fact that “in 1989 nine individuals who were
from the Verona Band were still alive and very much a part of
the Muwekma community” and that one of those individuals
remains alive today. Br. of Appellant 58. Muwekma asserts,
without citation, that “[t]his should be sufficient, without
more, to support an inference of a continuing tribal
community” necessary to satisfy section 83.7(b). Id. at 58-59.
While it is true that Interior’s Final Determination does not
expressly treat this evidence, it does consider the connection
between Verona Band and Muwekma and the activity of
Verona Band members over time, which takes this evidence
into account. In any event, this is not ipso facto evidence that
Muwekma has satisfied section 83.7(b). See Miami Nation,
255 F.3d at 351 (explaining that tribe can cease to exist).12

    12
        In fact, evidence that members of the Verona Band were
alive in 1989 and participating in Muwekma activities relates more
to the genealogical considerations of section 83.7(e) (requiring that
“membership consists of individuals who descend from a historical
Indian tribe . . . .”) than to section 83.7(b)’s requirement that a
predominant portion of Muwekma’s members comprise and have
comprised a distinct community.
                             26
    For the foregoing reasons, we affirm the district court’s
grant of summary judgment to Interior.
                                                 So ordered.
