                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                         February 16, 2018
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
DARRELL CHISSOE,

      Plaintiff - Appellant,

v.                                                          No. 16-5172
                                               (D.C. No. 4:15-CV-00166-CVE-TLW)
RYAN ZINKE, Secretary of the Interior of                    (N.D. Okla.)
the United States of America,*

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT**
                         _________________________________

Before HARTZ, McKAY, and MATHESON, Circuit Judges.
                  _________________________________

      Paul Chissoe applied to transfer restricted Indian land he owned (the Property)

to the Bureau of Indian Affairs (BIA) in trust. When Mr. Chissoe died, the BIA

Superintendent of the Okmulgee Agency (Superintendent) terminated his application.

His son, Plaintiff Darrell Chissoe, asked the Superintendent to reinstate the


      *
        Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Ryan Zinke is
substituted for Sally Jewell as Appellee in this case.
      **
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
application and to complete the transfer.1 The Superintendent denied his request.

The Acting Regional Director of the BIA and the Interior Board of Indian Appeals

(IBIA) each upheld the Superintendent’s denial. Plaintiff then brought this action.

The district court affirmed the IBIA’s decision. Plaintiff appeals. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm in part, reverse in part, and remand

for further proceedings.

                                   I. BACKGROUND

                                     A. The Property

      The Property, consisting of about 8.21 acres in Tulsa County, Oklahoma, was

originally allotted in 1904 to Pauline Chisholm, a full-blood member of the Creek

Nation. Under the allotment, she owned an interest in fee subject to the restrictions

against alienation contained in the Creek Agreement and federal statutes. See, e.g.,

Act of Aug. 4, 1947, 61 Stat. 731. Mr. Chissoe inherited the Property from Pauline

Chisholm in 1976. Because he possessed the required percentage of Indian blood,

the Property remained in restricted status.

            B. Administrative Proceedings Before Mr. Chissoe’s Death

      Mr. Chissoe initiated the process to transfer the Property into trust status. See

generally 25 U.S.C. § 465 (now 25 U.S.C. § 5108); 25 C.F.R. Part 151.2 When a


      1
        In this order and judgment, we refer to Darrell Chissoe as “Plaintiff” and his
father Paul Chissoe as “Mr. Chissoe.”
      2
         The BIA Regional Director questioned the adequacy of the requests to
transfer the Property into trust status. See Aplt. App. at 240 (noting that

                                              2
property is taken into trust, legal title is vested in the United States for the benefit of

the Indian land owner, who retains the beneficial interest.3 Under the regulations, the

Secretary of the Interior or his authorized representative is responsible for approving

or denying the request for such a fee-to-trust acquisition. See 25 C.F.R. §§ 151.2(a),

151.9, 151.12. The Superintendent serves as the Secretary’s authorized

representative for this purpose.

       On September 25, 2010, before the fee-to-trust process was completed,

Mr. Chissoe suffered a stroke. On October 1, 2010, an Oklahoma state court

appointed Plaintiff as his special guardian. The court authorized Plaintiff “to execute

on behalf of Paul Eugene Chissoe the application to place the restricted property of

Paul Eugene Chissoe in trust with the United States Department of the Interior

Bureau of Indian Affairs.” Aplt. App. at 89. Plaintiff was later appointed guardian

of Mr. Chissoe’s person and property.

       In January 2011, Plaintiff wrote to the Realty Office to say that he “would like

to begin the process of placing my property into Trust.” Aplt. App. at 125. On


Mr. Chissoe’s written application was “incomplete and Paul Chissoe did not sign or
submit it to the Nation or the Agency” and that Plaintiff’s written request was made
on his own behalf, not Mr. Chissoe’s). But the Secretary now concedes that a
sufficient fee-to-trust request was made by or on behalf of Mr. Chissoe during his
lifetime. See Aplee. Br. at 3-4; see also Aplt. App. at 279 n.7.
       3
        Mr. Chissoe sought trust status so that he and his family would continue to
receive certain protections associated with restricted Indian lands. See “Petition for
Appointment of Guardian and Special Guardian,” Aplt. App. at 85 (“[Mr.] Chissoe’s
purpose for placing the restricted property in trust was to continue to provide benefits
from the restricted property to his family and to protect the property for his family.”).

                                             3
January 13, 2011, a Realty Assistant made an official request to the Superintendent to

proceed with the fee-to-trust process. The Realty Office processed the acquisition as

a discretionary acquisition under the administrative procedures outlined in 25 C.F.R.,

Part 151. Neither Plaintiff, Mr. Chissoe, or their attorneys appear to have objected to

this procedure before the agency.

      In February 2011, the Realty Office obtained a title commitment for the

Property. The required notices were also sent to local and state government entities.

Two submitted comments. The Superintendent gave Plaintiff until April 12, 2011, to

respond to the comments. In addition, emails from March 2011 show that the Realty

Office was waiting for an appraisal of the Property to complete the acquisition

process. That appraisal was scheduled for completion in early May.

                 C. Administrative Proceedings After Mr. Chissoe’s Death

      On April 5, 2011, Mr. Chissoe died. The next day, the Realty Office wrote to

the Superintendent requesting closure of Mr. Chissoe’s acquisition file due to his

death. The Superintendent withdrew the pending requests for a legal description, an

appraisal, and other work on the application. He notified Plaintiff that the BIA had

terminated its acquisition of the Property because it could not process a fee-to-trust

request when the property owner was deceased.

      Plaintiff’s attorney wrote to the Superintendent offering to have Plaintiff

execute a deed as Mr. Chissoe’s personal representative to convey the Property into

trust. The attorney requested immediate reinstatement of Mr. Chissoe’s application

and that the BIA proceed with the approval process.

                                           4
      The Superintendent refused. He explained in a letter that “restricted lands are

not subject to conveyance by a personal representative,” Aplt. App. at 189, and that

“the BIA’s regulations do not contemplate the acquisition for a deceased individual

or estate” because some of the regulatory factors the BIA is required to consider “are

personal to the individual for whom the land will be taken into trust and clearly

require that the proposed trust beneficiary be a living person,” id. at 190. Finally, to

the extent the BIA’s regulations may permit the discretionary acquisition of land in

trust for a deceased individual or his estate, the Superintendent declined to exercise

his discretion to approve such an acquisition.

      Plaintiff appealed the Superintendent’s decision to the BIA’s Regional

Director, stating several reasons why the Superintendent should have proceeded with

a discretionary acquisition under Part 151. Specifically, he argued that (1) the

applicable regulations did not require him to demonstrate marketable title to place the

Property into trust; (2) even if marketable title were required, he did have marketable

title to the Property because Mr. Chissoe died testate and Plaintiff was his personal

representative; (3) as personal representative, Plaintiff could convey the Property into

trust as part of the probate proceedings; (4) Mr. Chissoe had expressed his intention

to place the Property into trust before his death through his application and therefore

“the decision as to the ultimate fate of [the Property] was made prior to death,” id. at

203; (5) the Superintendent should not have denied the application by relying solely

on certain regulatory factors benefiting Mr. Chissoe as a living individual,

particularly when the regulations as a whole did not expressly prohibit a conveyance

                                            5
by a deceased individual’s personal representative; and (6) policy considerations

underlying the Indian Reorganization Act, which encouraged tribal ownership, called

for the Property to be taken into trust even though Mr. Chissoe was now deceased.

      The Acting Regional Director affirmed the Superintendent’s denial. The

Director reiterated that “the Bureau’s regulations do not allow the acquisition of land

into trust for a deceased individual or an estate” because they “are personal to the

individual for whom the land will be taken into trust and clearly require that the

proposed trust beneficiary be a living person.” Id. at 241. As an additional ground

for affirmance, the Acting Regional Director pointed out that under the Bureau’s

regulations “formal acceptance of title in trust must be accomplished by the approval

of a conveyance instrument.” Id. A conveyance instrument would have to be

executed by the person with title to the property—Mr. Chissoe’s heirs—and not his

personal representative. Id. Plaintiff appealed her decision to the IBIA, which

affirmed on essentially the same grounds.

                               D. District Court Proceedings

      Plaintiff then brought this action in district court, seeking review of the IBIA’s

decision under the Administrative Procedure Act (APA). For the first time, citing

25 U.S.C. § 2216(c), he argued that “[b]ecause the [Property] was already in

restricted status, acceptance of the fee-to-trust acquisition was mandatory.” Aplt.

App. at 9 (emphasis added); see 25 C.F.R. § 151.10 (dispensing with certain

procedures and criteria applicable to a discretionary acquisition when “the acquisition

is mandated by legislation”). Alternatively, he argued that if the acquisition were

                                            6
discretionary, the Secretary had decided to take the property into trust before

Mr. Chissoe died and therefore 25 C.F.R. § 151.12(d)(2)(iv) required him to

implement that decision by immediately issuing an appropriate instrument of

conveyance. In his answer, the Secretary argued that the applicable regulations

required a living applicant and proposed trust beneficiary. He did not address the

§ 2216(c) and § 151.12(d)(2)(iv) arguments.

      The district court determined that, because no statute or regulation addressed

whether the BIA could take land into trust from a deceased person or his estate, the

BIA’s interpretations of its regulations should be afforded substantial deference. See

Aplt. App. at 323 (citing, among other authorities, Auer v. Robbins, 519 U.S. 452,

461 (1997)). It therefore affirmed the Secretary’s decision. It declined to address

Plaintiff’s claims under 25 U.S.C. § 2216(c) and 25 C.F.R. § 151.12(d)(2)(iv),

finding that Plaintiff had failed to exhaust them in the administrative process.

                                  II. DISCUSSION

                                A. Standard of Review

      Because this appeal arises under the Administrative Procedure Act (APA),

5 U.S.C. §§ 701-706, “we take an independent review of [the Secretary’s] action and

are not bound by the district court’s factual findings or legal conclusions.” Utah

Envtl. Cong. v. Bosworth, 439 F.3d 1184, 1188 (10th Cir. 2006) (internal quotation

marks omitted). We will “set aside agency action if it is arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law.” Id. (internal quotation

marks omitted); see 5 U.S.C. § 706(2)(A). We review de novo the district court’s

                                           7
determination of whether Plaintiff adequately exhausted his administrative remedies.

See Muskrat v. Deer Creek Pub. Sch., 715 F.3d 775, 785 (10th Cir. 2013).

                                      B. Analysis

      Plaintiff raises four issues on appeal. First, he argues the Secretary approved

the transfer of Property into trust before his father died. We disagree because only a

preliminary decision had been made. Second, Plaintiff argues the Secretary erred in

determining that the Plaintiff as personal representative held insufficient title to

convey the Property into trust. This argument does not overcome the Secretary’s

reasonable interpretation of the applicable regulations that the land can be transferred

to trust only when the property owner is alive. Third, Plaintiff argues that the

Secretary was required to approve the transfer under 25 U.S.C. § 2216(c) and that the

district court should not have rejected this argument as administratively unexhausted.

We remand for further consideration of this issue. Fourth, Plaintiff argues the district

court should have allowed him to supplement the administrative record. We invite

the district court to revisit this issue in light of the remand we order. We will discuss

each of these issues in turn.

1. Secretary’s Alleged Approval of the Acquisition Before Death

      Plaintiff argues the Secretary made a binding decision to acquire the property

in trust by January 2011, before Mr. Chissoe died. The district court concluded this

claim was unexhausted, but the Secretary has briefed it on the merits, and the claim is

sufficiently related to those presented in the administrative proceedings to satisfy the

exhaustion requirement. See Forest Guardians v. U.S. Forest Serv., 641 F.3d 423,

                                            8
430-31 (10th Cir. 2011) (en banc) (per curiam) (discussing scope of issues presented

to agency for administrative exhaustion purposes); see also Def.’s Response Br.,

Aplt. App. at 302 (“[B]efore a decision could be issued to either approve or deny the

application, Paul Chissoe passed away.” (emphasis added)). Accordingly, we will

discuss the merits of this claim.

      Plaintiff relies on a memorandum dated January 27, 2011, from the

Superintendent to the Office of the Field Solicitor, in Tulsa, stating that “[a]

preliminary decision has been made to acquire this property in trust.” Aplt. App. at

131. But this memorandum refers only to a preliminary decision. Compliance with

additional regulatory mandates was required before a final acquisition could be

approved and implemented. Indeed, the memorandum specifically refers to one such

mandate: obtaining a preliminary title opinion. See 25 C.F.R. § 151.13(b)

(permitting Secretary to require evidence of satisfactory title before finally approving

acquisition). As explained above, these procedures were not completed before

Mr. Chissoe’s death. Plaintiff therefore cannot bypass the issue of whether the

Secretary can approve a post-mortem transfer under the Part 151 procedures by

asserting that a final, pre-mortem decision had already been made.

2. Secretary’s Alleged Requirement Regarding Title to Complete the Transfer
   After Death

      Addressing the Secretary’s alternate basis for denying the application, Plaintiff

argues the Secretary erred in determining that Mr. Chissoe’s personal representative,

as opposed to an heir, held insufficient title to convey the Property into trust. He


                                            9
cites 25 C.F.R. § 151.14, which states: “Formal acceptance of land in trust status

shall be accomplished by the issuance or approval of an instrument of conveyance by

the Secretary as is appropriate in the circumstances.” (emphasis added). He reasons

that because the Secretary himself may issue an instrument of conveyance, the

Secretary may approve an instrument signed by a personal representative. See Aplt.

Opening Br. at 8-9.

       But § 151.14 does not discuss whether it is “appropriate” for the Secretary to

issue an instrument of conveyance on behalf of a deceased person. More important,

the Secretary interprets the regulation to allow acceptance of land into trust only for a

living property owner.

       Plaintiff also cites a portion of 25 U.S.C. § 465 (transferred to 25 U.S.C.

§ 5108), which states:

       The Secretary of the Interior is authorized, in his discretion, to acquire,
       through purchase, relinquishment, gift, exchange, or assignment, any
       interest in lands, water rights, or surface rights to lands, within or without
       existing reservations, including trust or otherwise restricted allotments,
       whether the allottee be living or deceased, for the purpose of providing land
       for Indians.
He notes this language has been construed broadly to permit acquisition of restricted

Indian lands by condemnation, where no deed is involved. See United States v. 29 Acres

of Land, 809 F.2d 544, 545 (8th Cir. 1987). He also cites an IBIA decision approving a

gift deed of restricted land after the Indian donor’s death. See Estate of Mary Dorcas

Gooday, 35 IBIA 79 (IBIA 2000). But the Part 151 regulations specifically govern this

case not the statute or cases Plaintiff cites.


                                                 10
       Although § 5108 and the Part 151 regulations do not state explicitly whether the

Secretary can take property into trust for a deceased individual, the Secretary adopted a

reasonable interpretation of the regulations to prohibit such a fee-to-trust transfer. The

regulations require, among other things, that the Secretary consider the applicant’s

“need . . . for additional land,” 25 C.F.R. § 151.10(b), and “the amount of trust or

restricted land already owned by or for that individual,” id. § 151.10(d). The Secretary

reads these requirements as requiring that the applicant be living at the time of the

agency’s decision. Plaintiff has failed to mount an effective challenge to this

interpretation. We discern no reason to reject the agency’s interpretation of the

regulations to forbid a transfer into trust from a deceased individual Indian or his estate.

3. Section 2216(c) Argument

       The Secretary contends that Plaintiff’s § 2216(c) argument must fail because it

was not presented in the administrative proceeding. As a general rule “[p]arties must

exhaust available administrative remedies before the [Secretary] prior to bringing

their grievances to federal court.” Ark Initiative v. U.S. Forest Serv., 660 F.3d 1256,

1261 (10th Cir. 2011) (internal quotation marks omitted); see 25 C.F.R. § 151.12(d)

(requiring exhaustion of administrative remedies in connection with acquisition

decision). This requires the plaintiff to present his claim “in sufficient detail to allow

the agency to rectify the alleged violation.” Ark Initiative, 660 F.3d at 1261 (internal

quotation marks omitted).

       The Secretary is correct that Plaintiff failed to present his § 2216(c) claim in

the administrative proceedings. But Plaintiff argues the district court should have

                                             11
reached the merits because: (1) exhaustion of administrative remedies is an

affirmative defense, which the Secretary waived by failing to raise it in district court;

and (2) exhaustion was not required because his § 2216(c) claim involves solely

statutory interpretation, concerns a mandatory duty, and requires no special

administrative expertise.4

      Before reaching those arguments, we first must determine whether failure to

exhaust the § 2216(c) claim deprived the district court of jurisdiction.

      a. Is exhaustion a jurisdictional requirement for the§ 2216 (c) claim?

      “Courts have recognized two types of exhaustion requirements: jurisdictional

exhaustion and non-jurisdictional exhaustion.” Kan. ex rel. Kan. Dep’t for Children

& Fam. v. SourceAmerica, 874 F.3d 1226, 1246 (10th Cir. 2017). If exhaustion of

the § 2216(c) claim here is a jurisdictional requirement established by Congress, it

controls the subject-matter jurisdiction of the district court and this court, and

Plaintiff’s claim cannot survive his failure to exhaust. See id. (“Jurisdictional

exhaustion is rooted in Congress’s power to control the jurisdiction of the federal

      4
         Plaintiff also argues that the exhaustion doctrine simply does not apply to his
§ 2216(c) claim. That claim, he argues, was “jurisdictional,” so he could never have
waived the claim at any stage of the proceedings, even if he failed to exhaust it.
Plaintiff appears to contend that because the mandate to acquire the property under
§ 2216(c) is non-discretionary, the statute imposes a jurisdictional requirement on the
Secretary that the federal courts must enforce, whether or not he brought that claim to
the Secretary’s attention. But this argument seems to confuse the statutory standard
that governs how the Secretary should exercise his authority with a reviewing court’s
jurisdiction over the acquisition proceedings. Plaintiff fails to convince us that his
§ 2216(c) claim implicates subject-matter jurisdiction in this way. Cf. Muskrat,
715 F.3d at 783-84 (explaining difference between “elements of a cause of action”
and “true jurisdictional limitations” (internal quotation marks omitted)).

                                            12
courts . . . and requires a court to dismiss for lack of subject-matter jurisdiction

whenever there has been a failure to exhaust.” (internal quotation marks omitted)).

On the other hand, if the exhaustion requirement is non-jurisdictional, Plaintiff may

be able to invoke prudential exceptions to overcome lack of exhaustion. See id. at

1246-47 (describing nature and purposes of non-jurisdictional exhaustion).

       We asked the parties to brief this jurisdictional issue. The Secretary presented

two arguments that the exhaustion requirement is jurisdictional. Neither is

persuasive. We conclude the exhaustion requirement here is non-jurisdictional and is

subject to prudential exceptions.

              i. Davis v. United States and Supreme Court Direction on Jurisdiction

       The Secretary relies on Davis ex. rel. Davis v. United States, 343 F.3d 1282

(10th Cir. 2003), in which we affirmed a district court’s jurisdictional dismissal of a

claim for BIA benefits for failure to exhaust. Since Davis, however, the Supreme

Court has further explained the test to be applied in determining whether an

exhaustion requirement is jurisdictional. Davis did not have occasion to apply this

test. Following the Supreme Court’s direction leads us to conclude the exhaustion

requirement here is non-jurisdictional.

       As the Supreme Court explained in Sebelius v. Auburn Reg’l Med. Ctr.,

568 U.S. 145 (2013), “[t]o ward off the profligate use of the term ‘jurisdiction,’ we

have adopted a readily administrable bright line for determining whether to classify a

statutory limitation as jurisdictional.” Id. at 153 (internal quotation marks omitted).

Under this test, a court must “inquire whether Congress has clearly stated that the

                                            13
rule is jurisdictional; absent such a clear statement . . . courts should treat the

restriction as nonjurisdictional in character.” Id. (brackets and internal quotation

marks omitted). This rule applies in determining whether a particular exhaustion

requirement is jurisdictional. See SourceAmerica, 874 F.3d at 1247.

       Applying the test here, we note the Secretary has not pointed to any statutory

statement by Congress making administrative exhaustion of Plaintiff’s claim under

§ 2216(c) a jurisdictional prerequisite to judicial review. Nor have we located such a

statement. The APA cannot itself serve this function, for “judicial exhaustion

requirements under the APA are prudential only.” M2Z Networks, Inc. v. FCC,

558 F.3d 554, 558 (D.C. Cir. 2009). Under the Supreme Court’s analysis, exhaustion

here is not a jurisdictional requirement.

              ii. Secretary’s finality argument

       The Secretary also argues we lack jurisdiction because there was no final

decision regarding application of § 2216(c) to this case. The Secretary correctly

states that under the APA only final decisions are subject to judicial review. He also

correctly states that an agency may control the finality of its decisions through its

regulations, see 5 U.S.C. § 704 (requiring litigant to exhaust administrative appeals

to obtain a final, reviewable decision, if the agency requires such an appeal by rule

and “provides that the action . . . is inoperative” pending the administrative appeal).

The Secretary points to a BIA regulation requiring litigants to exhaust their

administrative appeals, see 25 C.F.R. § 2.6, and then argues that the Plaintiff did not

obtain a final decision on his § 2216(c) claim.

                                            14
       Apart from whether the Secretary may properly equate lack of exhaustion with

lack of finality, the problem with his argument is that the BIA reached a final

decision. It did so when the Acting Regional Director ruled on Plaintiff’s appeal.

The omission of an argument from that appeal does not create a jurisdictional defect

based on “lack of finality.” The issue remains one of exhaustion.5

       We conclude that the exhaustion requirement here is non-jurisdictional and is

subject to prudential exceptions. We turn to Plaintiff’s arguments concerning

exhaustion.

       b. Plaintiff’s Prudential Arguments About Exhaustion

       Plaintiff makes two arguments to overcome his failure to exhaust the § 2216(c)

issue in the administrative proceedings. As we explain below, we remand to the district

court to consider both arguments.

       First, Plaintiff argues the Secretary waived the argument that Plaintiff failed to

exhaust the § 2216(c) issue in the administrative proceedings because the Secretary did

not make this argument in district court. The district court raised the exhaustion issue sua

sponte, but it is unclear whether it did so due to concern about its subject matter

jurisdiction or for some other reason. We are reluctant to resolve the Plaintiff’s waiver

       5
         To the extent the Secretary argues that the procedures under § 2216(c) are so
conceptually or legally distinct from the procedures under Part 151 that Plaintiff
needed an entirely separate, final decision addressing the § 2216(c) issue to satisfy
the APA’s finality requirement, we disagree. The Part 151 regulations, which
Plaintiff invoked here, specifically incorporate procedures for mandatory
acquisitions, such as those under § 2216(c). See 25 C.F.R. § 151.10 (requiring
Secretary to give notice “unless the acquisition is mandated by legislation” and to
consider certain criteria when “the acquisition is not mandated”).

                                             15
argument without the benefit of a more complete understanding of the district court’s

position on this matter, especially in light of our determination that the exhaustion

question is nonjurisdictional.

         Second, Plaintiff argues that his failure to exhaust should be disregarded

because the § 2216(c) issue involves solely a question of statutory interpretation.

Our response to this argument requires some background and discussion. See, e.g.,

Sinclair Wyo. Ref. Co. v. United States EPA, 874 F.3d 1159, 1169 n.6 (10th Cir.

2017).

         Although Sinclair reaffirmed this exception to exhaustion, “the mere fact that

a complaint raises questions of statutory interpretation . . . does not exempt the action

from the exhaustion doctrine.” St. Regis Paper Co. v. Marshall, 591 F.2d 612, 614

(10th Cir. 1979). A challenge to a regulation, for example, may require consideration

of its application to a specific set of facts, “so that the ultimate judicial review, if

necessary, will be facilitated by a complete administrative record.” Id. The

“executive and administrative autonomy” promoted by the exhaustion doctrine “is

particularly pertinent where the function of the agency and the particular decision

sought to be reviewed involve exercise of discretionary powers granted the agency by

Congress, or require application of special expertise.” McKart v. United States,

395 U.S. 185, 194 (1969).

         Despite these limitations on the exception, we think it may apply here.

Section 2216(c) provides:



                                             16
       An Indian . . . in possession of an interest in trust or restricted lands, at least
       a portion of which is in trust or restricted status on November 7, 2000, and
       located within a reservation, may request that the interest be taken into trust
       by the Secretary. Upon such a request, the Secretary shall forthwith take
       such interest into trust. (emphasis added)
       Because Mr. Chissoe was an Indian who possessed an interest in land that was

in restricted status on November 7, 2000, most of the § 2216(c) elements were

satisfied. But to qualify for mandatory acquisition under § 2216(c), the Property

must be “located within a reservation.” Id. The Secretary contends this issue cannot

be determined as a matter of law by a reviewing court, but requires agency expertise.

See Aplee. Br. at 20-21. Plaintiff argues to the contrary. See Aplt. Reply Br. at 2-8.

       We recently determined that Congress has not disestablished the Creek

Reservation. Murphy v. Royal, 866 F.3d 1164, 1233 (10th Cir.), amended on denial

of reh’g en banc, 875 F.3d 896 (10th Cir. 2017). Mr. Chissoe’s land appears to be

located within the traditional boundaries of the Creek Reservation and may therefore

have qualified for immediate and mandatory trust acquisition under § 2216(c).6

Because the district court applied its exhaustion analysis sua sponte, Plaintiff did not

have the opportunity to argue, and the district court did not address, whether

exhaustion should be excused under the prudential statutory interpretation exception.

Nor did the district court decide whether the claim required only statutory

interpretation.

       6
        Even if disestablished, the former Creek reservation lands may have qualified
as an “Indian reservation,” at least for purposes of Part 151. See 25 C.F.R.
§ 151.2(f).


                                               17
                                            ****

      The parties should be provided the opportunity to present their arguments

concerning the exhaustion requirement, including applicable prudential exceptions, to

the district court in the first instance. We therefore remand for further analysis of the

exhaustion issue and for any appropriate further proceedings.7

4. Supplementation/Completion of Agency Record

      Finally, Plaintiff challenges the district court’s denial of his motion to

complete the administrative record. In district court, Plaintiff sought to include

within the administrative record four documents showing that the fee-to-trust process

began earlier than indicated in the IBIA decision. The district court determined that

these documents were not part of the administrative record, and therefore treated his

motion as one to supplement the record. Plaintiff then argued that these documents

fell within various exceptions to the general rule that judicial review is limited to the

record before the agency at the time of its decision. See Am. Mining Cong. v.

Thomas, 772 F.2d 617, 626 (10th Cir. 1985) (describing exceptions). The district

court determined that none of the cited exceptions applied. Its ruling relied primarily

on Plaintiff’s failure to show that the documents were relevant to review of the

IBIA’s decision.


      7
         The Secretary presents other arguments to support the district court’s
exhaustion decision. Because these arguments were not made before the district
court, we decline to consider them. See United States v. Mora, 293 F.3d 1213, 1216
(10th Cir. 2002) (our “general rule [is] that we do not address arguments presented
for the first time on appeal”).

                                           18
       Plaintiff argues on appeal that the documents “should have been part of the

record from the beginning.” Aplt. Opening Br. at 19. In light of the remand we

order and the potential need to address the § 2216(c) issue on the merits, the district

court should revisit this issue.

                                   CONCLUSION

       We affirm the district court’s judgment in part, reverse in part, and remand for

further proceedings in accordance with this order and judgment.


                                            Entered for the Court


                                            Scott M. Matheson, Jr.
                                            Circuit Judge




                                           19
