                    FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 AGUA CALIENTE TRIBE OF CUPEÑO                    No. 17-16838
 INDIANS OF THE PALA RESERVATION,
                 Plaintiff-Appellant,                D.C. No.
                                                 2:15-cv-02329-
                     v.                             JAM-KJN

 TARA KATUK MAC LEAN SWEENEY *,
 Assistant Secretary of Indian Affairs,             OPINION
 United States Department of the
 Interior,
                Defendants-Appellees.

        Appeal from the United States District Court
            for the Eastern District of California
         John A. Mendez, District Judge, Presiding

         Argued and Submitted December 19, 2018
                 San Francisco, California

                      Filed August 7, 2019




    *
     Tara Katuk Mac Lean Sweeney is substituted for her predecessor
as Assistant Secretary of Indian Affairs, pursuant to Federal Rule of
Appellate Procedure 43(c)(2).
2             AGUA CALIENTE TRIBE V. SWEENEY

         Before: Danny J. Boggs, ** Richard A. Paez,
             and John B. Owens, Circuit Judges.

                      Opinion by Judge Paez


                          SUMMARY ***


                          Tribal Matters

    The panel affirmed the district court’s order refusing to
compel the Assistant Secretary of Indian Affairs to place the
Aqua Caliente Tribe of Cupeño Indians on a list of federally
recognized tribes published in the Federal Register.

    The district court held that the Cupeño failed to exhaust
the regulatory process codified at 25 C.F.R. § 83 (the Part 83
process).

    The panel held that here, the Part 83 process, which is a
formal administrative process for an Indian tribe to obtain
federal recognition codified in the U.S. Department of the
Interior’s regulations, was the prescribed remedy. The panel
further held that the Cupeño had made no attempt to exhaust
that process. The panel rejected the Cupeño’s contention
that the Part 83 process did not apply here because the
Cupeño sought “correction” of the list, not recognition. The
panel also held that, while there were some doctrinal

    **
       The Honorable Danny J. Boggs, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
    ***
        This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
            AGUA CALIENTE TRIBE V. SWEENEY                    3

exceptions to administrative exhaustion, they did not apply
here. Finally, the panel agreed with the district court’s
determination that the Cupeño must exhaust administrative
remedies, and until they did so, they were not entitled to the
relief they sought in this lawsuit.

    Concerning the Cupeño’s equal protection and
Administrative Procedure Act challenge, the panel agreed
with the district court that the Department of the Interior had
a rational basis for not making an exception to the Part 83
process for the Cupeño. The panel held that Interior’s
explanation for treating the Cupeño differently from the Ione
Band of Miwok Indians, the Lower Lake Rancheria, and the
Tejon Indian Tribe (who were all recognized outside of the
Part 83 process), and requiring the Cupeño to adhere to the
administrative process for federal recognition because many
of the Cupeño were recently members of the Pala Band of
Mission Indians, passed muster.

    Finally, the panel held that the political question doctrine
did not bar them from resolving the core issue in this case:
whether the Cupeño can secure listing outside of the Part 83
process.


                         COUNSEL

Andrew W. Twietmeyer (argued), Law Office of Andrew W.
Twietmeyer, Los Angeles, California, for Plaintiff-
Appellant.

Brian C. Toth (argued) and Mary Gabrielle Sprague,
Attorneys; Eric Grant, Deputy Assistant Attorney General;
Jeffrey H. Wood, Acting Assistant Attorney General;
Environment & Natural Resources Division, United States
4             AGUA CALIENTE TRIBE V. SWEENEY

Department of Justice, Washington, D.C.; James W. Porter
Office of the Solicitor, Department of the Interior,
Washington, D.C.; for Defendants-Appellees.


                             OPINION

PAEZ, Circuit Judge:

    The Agua Caliente Tribe of Cupeño Indians (the
“Cupeño”) argue that they are a federally recognized tribe,
and, as such, the Assistant Secretary of Indian Affairs
(“Assistant Secretary”) within the Department of the Interior
(“Interior”) must place the tribe on a list of federally
recognized tribes published in the Federal Register. 1 The
Cupeño sent a letter to the Assistant Secretary, requesting
that they be listed as a federally recognized tribe. When the
Assistant Secretary denied their request, the Cupeño filed
suit to compel such action. Having jurisdiction pursuant to
28 U.S.C. §§ 1331, 1361, and 5 U.S.C. § 706, the district
court refused to compel the listing of the Cupeño because
they had failed to exhaust the administrative process. The
district court further concluded that the Assistant Secretary
provided a rational explanation for refusing to make an
exception to the administrative process for the Cupeño. We
have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm.

                                  I.

    Before reaching the merits, we provide some background
on the Cupeño, their claims against Interior, and the relevant

    1
      Hereafter, we refer to the Assistant Secretary, Interior, and the
Bureau of Indian Affairs interchangeably.
              AGUA CALIENTE TRIBE V. SWEENEY                         5

regulatory process. We do not purport to provide a definitive
history of the tribe; instead we summarize key parts of the
record.

                         A. The Cupeño

    The Cupeño are an Indian group originally from a village
at Warner’s Hot Springs, California (“Warner’s Ranch”). 2

    In 1851, the United States negotiated a treaty at the San
Louis Rey Mission with several Indian tribes, including the
Cupeño. This treaty was never ratified. In 1865, the Office
of Indian Affairs recommended that a reservation be made
for the Cupeño near Warner’s Ranch, and a separate
reservation be made for the San Luis Indians at Pala (the
“Pala,” “Luiseño,” or “Pala Luiseño,” another tribe that was
a party to the unratified treaty). Separate reservations were
designated for the Pala Luiseño and the Cupeño by an
executive order of President Ulysses S. Grant in 1875. Five
years later, President Rutherford B. Hayes issued an
executive order canceling the order that had granted a
reservation for the Cupeño. Nevertheless, the Cupeño
continued to live on the land near Warner’s Ranch
throughout the late 1800s.

    Settlers later sought to quiet title to Warner’s Ranch and
succeeded in evicting the Cupeño living there. See Barker
v. Harvey, 181 U.S. 481, 491 (1901). Soon after, Congress
authorized the Secretary of the Interior to acquire land for
the “Mission Indians” that had been residing at Warner’s
     2
       For consistency with our case law, we use the term “Indian” to
refer to Native Americans. Additionally, although some historical
records refer to the Cupeño as the “Agua Caliente” or “Warner’s Ranch
Indians,” we use “the Cupeño” for internal consistency in this opinion.
6              AGUA CALIENTE TRIBE V. SWEENEY

Ranch. The Secretary selected and purchased a tract
adjacent to the Pala Luiseño where those Cupeño Indians
could live. These two tracts of reservation land are referred
to as “Pala.” 3

    The Cupeño and the Pala Luiseño did not integrate.
Interior reports show that the “Warner Ranch faction,” i.e.
the Cupeño, demonstrated “no desire or intention to affiliate
with the resident local Indians.” Census records show the
U.S. government tracked the Cupeño separately (as the
“Agua Caliente Tribe”) in at least one year.



     3
       The Cupeño maintain that the Cupeño and the Pala Luiseño have
never resided on one reservation but instead reside on two adjacent
reservations. In a recent case, we favorably cited Stand Up for
California! v. United States Department of Interior, 879 F.3d 1177 (D.C.
Cir. 2018), cert. denied sub nom. Stand Up for California! v. Dep’t of
the Interior, 139 S. Ct. 786 (2019), to conclude that the Indian
Reorganization Act’s “expansive definition of ‘tribe’” demonstrates that
a group of Indians “‘residing on one reservation’ in 1934 . . . were in a
‘tribe’ pursuant to the [Reorganization Act].” Cachil Dehe Band of
Wintun Indians of Colusa Indian Cmty. v. Zinke, 889 F.3d 584, 596 (9th
Cir. 2018). Here, the parties submitted 28(j) letters concerning the
Cachil Dehe Band and Stand Up for California! decisions. Those cases,
however, refer to the definition of tribe in the Reorganization Act, 25
U.S.C. § 5129, but the definition of tribe has some fluidity across federal
statutes, see Kahawaiolaa v. Norton, 386 F.3d 1271, 1272 (9th Cir. 2004)
(“[T]he United States has struggled to find an adequate definition of an
Indian tribe. There is no universally recognized legal definition of the
phrase, and no single federal statute defining it for all purposes.”); see
also 25 C.F.R. § 83.1. The resolution of whether there are one or two
Pala Reservations does not affect the outcome of this appeal—and we do
not resolve the issue here—because we need not resolve whether the
Cupeño and the Pala Luiseño were two tribes or one pursuant to the
Reorganization Act. We refer to the two tracts of land as the tracts at
“Pala” or the “Pala Reservation” not to suggest a conclusion, but for
consistency with the record.
              AGUA CALIENTE TRIBE V. SWEENEY                          7

    In 1934, Congress passed the Indian Reorganization Act
(“Reorganization Act”), 48 Stat. 984 (1934), 25 U.S.C.
§§ 5101–29, “which was intended in part to permit the tribes
to set up legal structures designed to aid in self-government,”
Kahawaiolaa v. Norton, 386 F.3d 1271, 1273 (9th Cir.
2004). The Reorganization Act authorized any tribe to
organize and “adopt an appropriate constitution and bylaws”
through a vote of the tribe’s members and approval of the
Secretary of the Interior. 25 U.S.C. § 5123(a). The
Reorganization Act did not apply to any reservation where a
majority of the adult Indians voted against its application “at
a special election duly called by the Secretary of the
Interior.” Id. § 5125. Interior held a single election for the
Indians residing on both tracts of the Pala Reservation—the
Cupeño and the Luiseño. The Indians overwhelmingly
rejected the Reorganization Act. While the Indians residing
at Pala considered themselves distinct, Interior considered it
“one reservation and no distinction [was] made between the
lands acquired at different times.” Some other federal
government records from that period distinguish between the
Cupeño and the Luiseño at Pala.

    In 1959, the Indians at both tracts of Pala adopted
Articles of Association to form one entity called the Pala
Band of Mission Indians (“PBMI”). The PBMI included
both the Cupeño and the Luiseño at Pala. Even though they
had voted against the Reorganization Act, the PBMI
submitted their Articles of Association to Interior, and
Interior approved them. 4


     4
       The Cupeño suggest the groups organized this way in part because
Interior urged them to and in part because it would help both the Cupeño
and the Pala Luiseño benefit from a contract for the sale of sand and
gravel. We do not determine the reasons that the Cupeño and the Luiseño
8             AGUA CALIENTE TRIBE V. SWEENEY

    In 1979, for the first time, Interior published a list of
federally acknowledged Indian tribes in the Federal Register,
and the list included the “Pala Band of Luiseno Mission
Indians, Pala Reservation, California.” Still, the federal
government continued to acknowledge the distinct identities
of the Cupeño and the Luiseño at Pala in some other
contexts, such as in a Federal Register notice regarding an
archaeological site, and in the 2010 census.

    In the 1990s, the PBMI adopted a constitution, which
Interior approved in 2000.          The PBMI Constitution
maintained the same membership requirements as the
Articles of Association. One change from the Articles of
Association to the PBMI Constitution allowed a six-member
committee to amend or replace its existing enrollment
ordinance with a new ordinance concerning membership and
disenrollment. See Aguayo v. Jewell, 827 F.3d 1213, 1219
(9th Cir. 2016).         In 2011, the PBMI disenrolled
approximately 150 members of Cupeño descent. Id. at 1220.
Interior recommended against disenrollment but determined
it could not intervene in the disenrollment decision and did
not address the merits of the disenrollment decision. Id.
at 1220–21. Sixty-five of the disenrolled members brought
suit in federal court, and we heard the case on appeal. Id. at
1221. We recognized that “[t]ribal enrollment decisions are
generally beyond the power of federal courts to review.” Id.
at 1222. We agreed with Interior’s hands-off approach, id.
at 1221, noting that, “in the exercise of sovereignty and self-
governance, tribes have the right, like other governments, to
make good decisions, bad decisions, and decisions with
which others may disagree,” but that the federal government
“does not interfere in those decisions in the absence of

came together to form the PBMI, nor could we do so on the record before
us.
              AGUA CALIENTE TRIBE V. SWEENEY                         9

specific authority to do so,” id. at 1229 (internal quotation
omitted).

    In August 2014, the Cupeño resolved to withdraw from
the PBMI and established their own constitution.

    In September 2014, the PBMI requested that Interior list
it as the “Pala Band of Mission Indians of the Pala
Reservation, California” on all subsequent lists—in effect,
the PBMI asked Interior to omit the word “Luiseno” from
the PBMI’s name on the Federal Register list. The Federal
Register list published in January 2016 reflected the
requested change. 5 Indian Entities Recognized and Eligible
To Receive Services From the United States Bureau of
Indian Affairs, 81 Fed. Reg. 5019-02, 5022 (Jan. 19, 2016);
see also id. at 5020 (“Amendments to the list include name
changes and name corrections. To aid in identifying Tribal
name changes and corrections, the Tribe’s previously listed
or former name is included in parentheses after the correct
current Tribal name.”).

               B. The Claims Against Interior

    In December 2014, the Cupeño sent a letter to the
Assistant Secretary for the Bureau of Indian Affairs
enclosing the new Cupeño Constitution and asking Interior
“to correct the 2015 list of federally-recognized Indian
Tribes to reflect the independent sovereignty of the Agua
Caliente Tribe of Cupeño Indians of the Pala Reservation.”


    5
        The Cupeño objected to the name change unless they were
simultaneously added to the Federal Register list. William J. Pink v.
Acting Assistant Sec’y Indian Affairs, 62 I.B.I.A. 250, 250, 2016 WL
3057938, at *1 (March 7, 2016). Interior’s Board of Indian Appeals held
that it lacked jurisdiction to review the name change. Id.
10          AGUA CALIENTE TRIBE V. SWEENEY

    The Cupeño sent a second letter to the Assistant
Secretary in June 2015. In this letter, the Cupeño argued that
the PBMI is an “association of tribes” and “not a federally-
recognized tribe in its own right,” and that it was
administrative error not to include the Cupeño on the Federal
Register list. The Cupeño again asked Interior to “update the
List of federally-recognized Indian tribes.”

    Having received no response to their letters, the Cupeño
filed this suit in November 2015, seeking to compel the
Assistant Secretary to respond to the request to correct or
update the list.

    In February 2016, the Assistant Secretary denied the
Cupeño’s request to be included on the recognized tribes list.
In rejecting the request, the Assistant Secretary first noted a
2015 Policy Guidance that “directs any unrecognized group
requesting that the Department [of the Interior] acknowledge
it as an Indian tribe, through reaffirmation or any other
alternative basis, to petition under 25 CFR part 83.” Second,
the Assistant Secretary stated that the Cupeño are distinct
from other groups that have been “reaffirmed” outside of the
regulatory process codified at 25 C.F.R. § 83 (the “Part 83”
process), namely the Lower Lake Rancheria, the Ione Band
of Miwok Indians, and the Tejon Tribe, because those
groups established a pattern of dealings evidencing their
long-standing and continuing governmental relationships
with the United States. In particular, the fact that the Cupeño
resolved to withdraw from the PBMI and dissociate from the
Pala Luiseño is a “major distinction.” The Assistant
Secretary further explained that “the people now seeking
Federal recognition as the Agua Caliente Tribe of the
Cupeño Indians of the Pala Reservation are, or were until
recently, members of the Pala Band of Mission Indians, a
federally recognized tribe.” The Assistant Secretary directed
              AGUA CALIENTE TRIBE V. SWEENEY                        11

the Cupeño “to exhaust administrative remedies by
proceeding through the Part 83 process.”

   The Cupeño amended the complaint to seek an order
reversing the Assistant Secretary’s decision.

    At a hearing on cross-motions for summary judgment,
the district court granted the Assistant Secretary’s motion
and ruled that the court did not have jurisdiction to hear the
case or to compel Interior to correct the federally recognized
Indian tribe list to add the Cupeño. The district court
recognized that Part 83 is a mandatory process, and the
Cupeño had failed to exhaust it. The district court stated
that, outside of the Part 83 process, any recognition of an
Indian tribe is a political question. The district court further
concluded that Interior provided a rational explanation for
why it made exceptions to the Part 83 process for three tribes
but not for the Cupeño because, until recently, the Cupeño
had received the benefits and services of membership in
another federally recognized tribe, and they could not show
they were treated as a separately recognized tribe. This
appeal followed.

   C. Tribal Recognition and the Regulatory Process

    Although tribes retain “inherent sovereign authority,”
Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 788
(2014), “as far as the federal government is concerned, an
American Indian tribe does not exist as a legal entity unless
the federal government decides that it exists,” Kahawaiolaa,
386 F.3d at 1273. 6 When a tribe is federally recognized, it

    6
      The tension between the sovereignty of tribes and the recognition
power of the federal government is unsettling, especially in light of a
history of violence against tribes. See Alva C. Mather, Old Promises:
12            AGUA CALIENTE TRIBE V. SWEENEY

confers a suite of federal protections. 25 C.F.R. § 83.2; see
also Kahawaiolaa, 386 F.3d at 1273 (“Federal recognition
affords important rights and protections to Indian tribes,
including limited sovereign immunity, powers of self-
government, the right to control the lands held in trust for
them by the federal government, and the right to apply for a
number of federal services.”); but see United States v.
Washington, 641 F.2d 1368, 1371 (9th Cir. 1981)
(recognizing that nonrecognition of a tribe by the federal
government “may result in loss of statutory benefits, but can
have no impact on vested treaty rights”). Federal recognition
is “a prerequisite” to an Indian tribe “possess[ing] a
government-to-government relationship with the United
States.” 25 C.F.R. § 83.2(a). Federal recognition is also
referred to as federal acknowledgment. See 25 C.F.R.
§ 83.1.

    Historically, federal recognition could arise from treaty,
executive order, or course of dealing. Kahawaiolaa,
386 F.3d at 1273 (citing William C. Canby, Jr., American
Indian Law in a Nutshell 4 (4th ed. 2004)). In 1934,
Congress passed the Reorganization Act, which had the
“overriding purpose . . . to establish machinery whereby


The Judiciary and the Future of Native American Federal
Acknowledgment Litigation, 151 U. Pa. L. Rev. 1827, 1829–30 (2003)
(describing the, sometimes deadly, forced displacement of tribes from
their homes by the federal government). Our opinion should not be read
as suggesting that non-federally recognized tribes do not exist or lack
rich indigenous histories and cultures. See Kahawaiolaa, 386 F.3d
at 1273 n.1. Nor do we comment on the separate recognition processes
for internal-state government purposes that some states have adopted.
See Federal and State Recognized Tribes, National Conference of State
Legislatures, http://www.ncsl.org/research/state-tribal-institute/list-of-
federal-and-state-recognized-tribes.aspx#State (last visited May 23,
2019).
            AGUA CALIENTE TRIBE V. SWEENEY                 13

Indian tribes would be able to assume a greater degree of
self-government, both politically and economically,” and
formalized, to a degree, federal recognition. Morton v.
Mancari, 417 U.S. 535, 542 (1974); Muwekma Ohlone Tribe
v. Salazar, 708 F.3d 209, 211 (D.C. Cir. 2013). The
Reorganization Act authorized tribes to adopt governing
documents through a vote of the tribe’s members and
Interior’s approval but did not apply to reservations where a
majority of adult members of the tribe voted against its
application. 25 U.S.C. §§ 5123(a), 5125. “[N]inety-nine
tribes were organized under the [Reorganization Act] and
ninety-six Indian tribes were excluded. All of the tribes that
organized became federally recognized tribes.” Alva C.
Mather, Old Promises: The Judiciary and the Future of
Native American Federal Acknowledgment Litigation,
151 U. Pa. L. Rev. 1827, 1831 (2003).

    Until the 1970s, federal recognition remained on a “case-
by-case basis.” Kahawaiolaa, 386 F.3d at 1273 (citations
omitted). In 1975, “Congress established the American
Indian Policy Review Commission to survey the current
status of Native Americans. The Commission highlighted a
number of inconsistencies in the Department of Interior
tribal recognition process and special problems that existed
with non-recognized tribes.” Id. In 1978, Interior
promulgated regulations establishing a uniform procedure
for “acknowledging” American Indian Tribes. Id. (citing
25 C.F.R. § 83.1); see also 25 U.S.C. § 9 (delegating
authority to the executive to “prescribe such regulations as
[the President] may think fit for carrying into effect the
various provisions of any act relating to Indian affairs, and
for settlement of the accounts of Indian affairs”). When
acknowledged, a tribe is added to the list of federally
recognized tribes, which Interior has published annually in
the Federal Register since 1979. 25 C.F.R. § 83.6(a); Indian
14          AGUA CALIENTE TRIBE V. SWEENEY

Tribal Entities That Have A Government-To-Government
Relationship With The United States, 44 Fed. Reg. 7235
(Feb. 6, 1979).         Pursuant to the acknowledgment
regulations—the Part 83 process—other tribes may petition
to be added to the list. 25 C.F.R. § 83.5.

     Interior reviews a Part 83 petition for recognition to
determine whether the tribe can meet a list of criteria: (a) the
group has been identified from historical times to the
present, on a substantially continuous basis, as Indian; (b) “a
predominant portion of the petitioning group comprises a
distinct community and has existed as a community from
historical times until the present”; (c) the group “has
maintained political influence or other authority over its
members as an autonomous entity from historical times until
the present”; (d) the group has a governing document; (e) the
group has lists of members demonstrating their descent from
a tribe that existed historically; (f) most of the members are
not members of any other acknowledged Indian tribe (with
an exception for former members); (g) the group’s status as
a tribe is not precluded by congressional legislation.
25 C.F.R. § 83.11. A tribe that proves it was “previously
acknowledged as a federally recognized tribe, or is a portion
that evolved out of a previously federally recognized Indian
tribe,” need only establish (b) and either (a) or (c) from the
list of criteria in section 83.11. 25 C.F.R. § 83.12. Staff
historians and anthropologists at Interior conduct this
review. Kahawaiolaa, 386 F.3d at 1274. “Thus, through its
broad delegation and acknowledgment regulations, the
Department of Interior has assumed much of the
responsibility for determining which tribes have met the
requirements to be acknowledged as a tribe with a
government-to-government relationship with the United
States.” Id.
            AGUA CALIENTE TRIBE V. SWEENEY                  15

    In 1994, Congress passed the Federally Recognized
Indian Tribe List Act (“List Act”), Pub. L. No. 103–454, 108
Stat 4791 (1994). The List Act requires Interior to publish
annually “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. § 5131. In its findings,
Congress stated that a tribe may become recognized through
Congress, the Part 83 administrative process, or a decision
of a United States court. Pub. L. No. 103–454, § 103(3), 108
Stat 4791. The Congressional findings for the List Act
charge Interior with maintaining an “accurate, regularly
updated, and regularly published” list, “since it is used by
the various departments and agencies of the United States to
determine the eligibility of certain groups to receive services
from the United States.” Id. § 103(6)–(8).

    In 2015, Interior updated the Part 83 regulations,
“revis[ing] regulations governing the process and criteria by
which the Secretary acknowledges an Indian tribe.” Federal
Acknowledgment of American Indian Tribes, 80 Fed. Reg.
37,862 (July 1, 2015) (codified at 25 C.F.R. pt. 83). The
2015 revisions were the result of a notice-and-comment
process that included meetings between Interior and
federally recognized tribes, public meetings, and the
submission of hundreds of written comments. Id. at 80 Fed.
Reg. 37,864. Interior acknowledged that the “process has
been criticized as too slow (a petition can take decades to be
decided), expensive, burdensome, inefficient, intrusive, less
than transparent, and unpredictable.” Id. at 80 Fed. Reg.
37,862. With the 2015 revisions, Interior sought to
streamline the process. Id. (noting, among other things, that
the revisions should “allow[] for faster decisions [and]
reduc[e] the documentary burden while maintaining the
existing rigor of the process”). The revisions note, “[a]ny
16          AGUA CALIENTE TRIBE V. SWEENEY

petitioner who has not submitted a complete documented
petition as of July 31, 2015 must proceed under these revised
regulations.” 25 C.F.R. § 83.7.

    There are currently 573 federally recognized tribes.
Indian Entities Recognized and Eligible To Receive Services
from the United States Bureau of Indian Affairs, 84 Fed.
Reg. 1200-01 (Feb. 1, 2019). The two primary ways of
obtaining recognition today are through a Congressional
process or the Part 83 petition process. See Kristen Matoy
Carlson, Congress, Tribal Recognition, and Legislative-
Administrative Multiplicity, 91 Ind. L.J. 955, 971–72 (2016).

                              II.

    The Cupeño seek an order compelling Interior to include
the Cupeño on the federally recognized tribes list pursuant
to 28 U.S.C. § 1361 and 5 U.S.C. § 706(2). The Cupeño
advance two theories of how this may be accomplished.
First, the Cupeño argue that Interior has a duty to “correct”
the list. Under this theory, the Part 83 regulations do not
apply. Second, the Cupeño argue that the decision not to list
the Cupeño without invoking the Part 83 process must be set
aside as arbitrary and capricious. The Cupeño point to three
other tribes that Interior has added to the list outside of the
Part 83 process and argue that there is no rational basis to
treat the Cupeño differently. We construe the first theory as
one in the nature of mandamus, and the second theory as
both an Administrative Procedures Act (“APA”) and an
equal protection claim.

    Interior responds with a bevy of arguments for why we
should not determine whether the Cupeño should be listed,
including that (1) the Cupeño failed to exhaust
administrative remedies, (2) the prudential doctrine of
primary jurisdiction precludes review, (3) there is a rational
              AGUA CALIENTE TRIBE V. SWEENEY                        17

basis for distinguishing the Cupeño from the three other
tribes, and (4) any request to correct the list is time-barred.
Interior takes no position as to what it would conclude if the
Cupeño were to file a Part 83 petition. Recording of Oral
Argument at 15:01–15:09, Agua Caliente of the Cupeño v.
Michael Black, No. 17-16838 (9th Cir. Dec. 19, 2018).

   We review de novo the district court’s grant of summary
judgment. Aguayo, 827 F.3d at 1221.

        A. Mandamus and Administrative Exhaustion

    District courts have jurisdiction “to compel an officer or
employee of the United States or any agency thereof to
perform a duty owed to the plaintiff,” pursuant to the
Mandamus Act, 28 U.S.C. § 1361, and a similar provision of
the APA, 5 U.S.C. § 706(1), which allows courts to compel
“agency action unlawfully withheld or unreasonably
delayed.” Here, we consider the two together “[b]ecause the
relief sought is essentially the same.” Indep. Mining Co. v.
Babbitt, 105 F.3d 502, 507 (9th Cir. 1997). An order
pursuant to § 1361 is available only if (1) the claim is clear
and certain; (2) the official’s or agency’s “duty is
nondiscretionary, ministerial, and so plainly prescribed as to
be free from doubt”; and (3) no other adequate remedy is
available. 7 Patel v. Reno, 134 F.3d 929, 931 (9th Cir. 1997).
Relatedly, the “well established” doctrine of administrative

    7
       When examining a request for mandamus relief under the APA,
we apply the six-factor test announced in Telecommunications Research
& Action Center v. F.C.C., 750 F.2d 70, 79–80 (D.C. Cir. 1984) (the
“TRAC factors”), which more closely examines timeliness and delay.
See Indep. Mining Co., 105 F.3d at 507 n.7. The Cupeño have made no
arguments regarding the TRAC factors, and because we conclude there
is an available, unexhausted administrative remedy, we need not analyze
the TRAC factors.
18          AGUA CALIENTE TRIBE V. SWEENEY

remedies “provides that no one is entitled to judicial relief
for a supposed or threatened injury until the prescribed
administrative remedy has been exhausted.” Woodford v.
Ngo, 548 U.S. 81, 88–89 (2006) (quotations omitted).

    As the source of Interior’s nondiscretionary duty, the
Cupeño point to the federal government’s trust duty to
Indian tribes, the Congressional findings that precede the
List Act, and three other instances in which Interior has
recognized a tribe outside of the Part 83 process. Assuming
Interior has a duty to list the Cupeño, the Part 83 process
provides an available, adequate remedy that the Cupeño
have failed to exhaust.

    Here, the Part 83 process, which is a formal
administrative process for an Indian tribe to obtain federal
recognition codified in Interior’s regulations, is the
prescribed remedy. A tribe seeking recognition—whether it
has been previously recognized or not—may petition
Interior. 25 C.F.R. §§ 83.3–83.5, 83.12. Once it receives
the petition, Interior’s Office of Federal Acknowledgement
evaluates it and issues a proposed finding. Id. §§ 83.26,
83.28, 83.32. The tribe may respond, submit additional
documents, and challenge the proposed finding before an
Administrative Law Judge. Id. §§ 83.35, 83.37, 83.38. After
the Administrative Law Judge issues a decision, the
Assistant Secretary of Indian Affairs within Interior will
begin review and, within 90 days of starting review, issue a
final determination. Id. §§ 83.40, 83.42. The Assistant
Secretary’s final determination is a final agency action under
the APA, which may be challenged in federal court.
5 U.S.C. § 704; 25 C.F.R. § 83.44.

   The Cupeño have made no attempt to exhaust that
process. Instead, the Cupeño argue that the Part 83 process
does not apply here because the Cupeño seek “correction” of
            AGUA CALIENTE TRIBE V. SWEENEY                   19

the list, not recognition. Sending a letter to the Assistant
Secretary exhausts the process for correcting the list,
according to the Cupeño. While sending a letter is similar to
the method by which the PBMI sought a tribal name change
on the list, see 81 Fed. Reg. 5019-02 (Jan. 29, 2016), the
Cupeño’s construction of “correction” is novel and does not
control. The Cupeño seek to add an additional indigenous
entity to the list rather than correct an entity’s name.

     Framing the issue as one of “correction” is unsupported
by the applicable regulations and case law. The idea of
correcting the list seems to come in part from the
congressional finding that “the Secretary of the Interior is
charged with the responsibility of keeping a list of all
federally recognized tribes” and “the list published by the
Secretary should be accurate.” Pub. L. No. 103–454,
§ 103(6), 108 Stat 4791. That finding need not be divorced
from the Part 83 process that Interior designed to fulfill its
list-keeping responsibility. See 25 C.F.R. § 83.2. Although
somewhat circular, by definition, a federally recognized
tribe is one that is already on the list. While the term “tribe”
is subject to different definitions across statutes, see
Kahawaiolaa, 386 F.3d at 1272, a “[f]ederally recognized
Indian tribe” is “an entity listed on the Department of the
Interior’s list under the Federally Recognized Indian Tribe
List Act of 1994, which the Secretary currently
acknowledges as an Indian tribe and with which the United
States maintains a government-to-government relationship.”
25 C.F.R. § 83.1 (emphasis added); see also Wyandot Nation
of Kansas v. United States, 858 F.3d 1392, 1398 (Fed. Cir.
2017) (“We are persuaded that the List Act regulatory
scheme exclusively governs federal recognition of Indian
tribes.”).
20            AGUA CALIENTE TRIBE V. SWEENEY

    Still, the Cupeño argue that they can bypass the Part 83
process because the tribe has long been federally recognized,
and the tribe’s relationship with the federal government has
never lapsed or been severed. As support, the Cupeño cite
two letters from 2012 authored by the Assistant Secretary of
Indian Affairs and regarding the Tejon Indian Tribe, which
was added to the list outside of the Part 83 process. In those
letters, the Assistant Secretary wrote that the Part 83
acknowledgment process “does not apply to Indian tribes
whose government-to-government relationship was never
severed.” That statement no longer reflects Interior’s
interpretation of the Part 83 regulations, and it is inconsistent
with Interior’s operative Part 83 regulations. 8

    A plain reading of the Part 83 regulations makes no
exceptions for tribes that establish an unsevered relationship
with the federal government. The Part 83 regulations
announce, “[a]ny petitioner who has not submitted a
complete documented petition as of July 31, 2015, must
proceed under these revised regulations.” 25 C.F.R.
§ 83.7(a). A policy guidance published on July 1, 2015,
confirms “[Interior’s] intent to make determinations to
acknowledge Federal Indian tribes within the contiguous
48 states only in accordance with the regulations established
for that purpose at 25 CFR part 83.” Policy guidance,
Requests for Administrative Acknowledgment of Federal
Indian Tribes, 80 Fed. Reg. 37,538-02 (July 1, 2015)
(emphasis added).



     8
       Because this interpretation is not operative, requiring the Cupeño
to go through the Part 83 process does not sever or in any way alter the
relationship between the Cupeño and the federal government, as the
Cupeño argue it will.
            AGUA CALIENTE TRIBE V. SWEENEY                  21

    The Part 83 regulations recognize that petitioning tribes
may be in different positions. There are relaxed criteria for
recognizing tribes that have been “previously acknowledged
as a federally recognized tribe.” 25 C.F.R. § 83.12; see also
Muwekma Ohlone Tribe, 708 F.3d at 218. Contrary to the
Cupeño’s suggestion, this section of the regulations is not
limited to tribes whose relationship with the federal
government has lapsed or terminated. 25 C.F.R. § 83.12.
Instead, the regulations allow for evidence of past federal
recognition—presumably evidence like the documentation
that the Cupeño submitted in the summary judgment record
here. Id. The regulations also address how “[a] splinter
group, political faction, community or entity of any character
that separates from the main body of a currently federally
recognized Indian tribe”—like the Cupeño separating from
the PBMI—can obtain recognition. 25 C.F.R. § 83.4(b).
Such a group would have to “clearly demonstrate it has
functioned from 1900 until the present as a politically
autonomous community and meets § 83.11(f),” id., where
§ 83.11(f) explains how a tribe whose membership is
composed principally of persons who have formerly been
enrolled in another tribe may still obtain recognition, id.
§ 83.11(f).

     We also find guidance in other situations where tribes
have sought recognition from courts, instead of pursuing the
Part 83 process, without success. For example, instead of
filing a Part 83 petition, the Gay Head Tribe filed suit in
federal court seeking “a declaration ordering [Interior] to add
the Gay Head Tribe to the list of federally recognized tribes.”
James v. U.S. Dep’t of Health & Human Servs., 824 F.2d
1132, 1136–37 (D.C. Cir. 1987). Much like the Cupeño’s
argument here, the Gay Head Tribe argued that it would be
“redundant for them to exhaust administrative channels in an
attempt to obtain federal recognition because the Gay Heads
22          AGUA CALIENTE TRIBE V. SWEENEY

have already been recognized.” Id. at 1137. The D.C.
Circuit was “unpersua[ded]” and required exhaustion of
Interior’s procedures. Id. The D.C. Circuit reasoned, “the
determination       whether      [scholarly,      government-
commissioned] documents adequately support the
conclusion that the Gay Heads were federally recognized in
the middle of the nineteenth century, or whether other factors
support federal recognition, should be made in the first
instance by the Department of the Interior since Congress
has specifically authorized the Executive Branch to
prescribe regulations concerning Indian affairs and
relations.” Id. (citing 25 U.S.C. §§ 2, 9). The D.C. Circuit
noted that Interior had expertise in the area of tribal
recognition, including historians, anthropologists, and
genealogical researchers on staff. Id. The purpose of the
Part 83 regulatory scheme is for Interior “to determine which
Indian groups exist as tribes” and that 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.” James,
824 F.2d at 1137.

    Similarly, the Tenth Circuit has indicated that exhaustion
is required when “a plaintiff attempts to bypass the
regulatory framework for establishing that an Indian group
exists as an Indian tribe.” United Tribe of Shawnee Indians
v. United States, 253 F.3d 543, 550 (10th Cir. 2001) (citing
W. Shoshone Bus. Council v. Babbitt, 1 F.3d 1052, 1056–58
(10th Cir. 1993)). There, a Shawnee Indian group initiated
the Part 83 process, but then abandoned it and sought a
judicial declaration of federal recognition. Id. at 546. The
Shawnee pointed to a treaty from 1854 and a judicial
decision from 1866 recognizing it as a tribe. Id. at 546. The
Tenth Circuit held that exhaustion of the Part 83 process was
necessary because it is a matter of “specialized agency
              AGUA CALIENTE TRIBE V. SWEENEY                         23

expertise,” and Congress “inten[ded] that recognized status
be determined through the administrative process.” Id.
at 551. Moreover, “exhaustion ‘may produce a useful record
for subsequent judicial consideration, especially in a
complex or technically factual context.’” Id. (quoting
McCarthy v. Madigan, 503 U.S. 140, 145 (1992)); see also
Muwekma Ohlone Tribe, 708 F.3d at 213 (acknowledging
that the Muwekma sought recognition by letter, but when
Interior directed Muwekma to submit a Part 83 petition
instead, the tribe did so).

    We agree with the reasoning of our sister circuits in
James and United Tribe of Shawnee Indians. The factual
record that could be developed at the administrative level
would aid any future judicial review. United Tribe of
Shawnee Indians, 253 F.3d at 551; James, 824 F.2d at 1138.

    Finally, while there are some doctrinal exceptions to
administrative exhaustion, they do not apply here. For
example, one exception is if exhaustion would be futile
because of certainty of an adverse decision. James, 824 F.2d
at 1139. The Cupeño have not argued this, and the letter
from the Assistant Secretary requiring the Cupeño to apply
through Part 83 does not suggest futility. 9 Alternatively, the
tribe may seek recourse in federal court if it is dissatisfied
with the outcome of the administrative process. Muwekma
Ohlone Tribe, 708 F.3d at 213; see also 25 C.F.R. § 83.44
(noting that the Assistant Secretary’s final determination at
the end of the Part 83 process is a final agency action for

    9
     Indeed, at oral argument, Interior recognized that “there appears to
have been a relationship” between the Cupeño and the federal
government, and the Cupeño submitted evidence of it. Recording of Oral
Argument at 22:48–23:07, Agua Caliente of the Cupeño v. Michael
Black, No. 17-16838 (9th Cir. Dec. 19, 2018).
24             AGUA CALIENTE TRIBE V. SWEENEY

purposes of the APA). Further, while the government has a
“trust responsibility to Indians” to act in the interest of tribes,
that responsibility does not require Interior to take a specific
action beyond what statutes and regulations require. Gros
Ventre Tribe v. United States, 469 F.3d 801, 810 (9th Cir.
2006); see also Morongo Band of Mission Indians v. F.A.A.,
161 F.3d 569, 574 (9th Cir. 1998).

    The Part 83 process applies to the relief the Cupeño seek,
and the Cupeño failed to exhaust the process. We agree with
the district court’s determination that the Cupeño must
exhaust administrative remedies, and until they do so, they
are not entitled to the relief they seek in this lawsuit.

                 B. APA and Equal Protection

    On three occasions since 1979, Interior has recognized
tribes outside of the Part 83 process. To treat the Cupeño
differently from those three tribes, the Cupeño argue, is
arbitrary and capricious and a violation of the Cupeño’s
equal protection rights. Because the arguments are the same,
we treat this as one claim. 10 Ursack, Inc. v. Sierra

     10
         The Cupeño brought this as an equal protection claim in the
district court, but presented it on appeal as an APA claim that is
dependent upon rational basis review—like an equal protection claim.
Without exhaustion of administrative remedies, there is no final agency
action for us to review. Nonetheless, a rational basis review of an equal
protection claim and an arbitrary and capricious review of an APA claim
are similar. See Muwekma Ohlone Tribe, 708 F.3d at 215 (discussing
the two standards and claims together); see also Nat’l Mining Assoc. v.
Zinke, 877 F.3d 845, 866 (9th Cir. 2017) (internal quotation marks
omitted) (“The [arbitrary-and-capricious standard] is highly deferential,
presuming the agency action to be valid and affirming the agency action
if a reasonable basis exists for its decision.”); Westar Energy, Inc. v. Fed.
Energy Regulatory Comm’n, 473 F.3d 1239, 1241 (D.C. Cir. 2007) (“A
fundamental norm of administrative procedure requires an agency to
              AGUA CALIENTE TRIBE V. SWEENEY                          25

Interagency Black Bear Grp., 639 F.3d 949, 955 (9th Cir.
2011) (treating the rational basis test for an equal protection
violation as an analogue to the APA arbitrary and capricious
standard).

    To prevail on an equal protection claim, the plaintiff
must show the government has treated it differently from a
similarly situated party and the government’s explanation
for different treatment does not meet the relevant level of
scrutiny. Muwekma Ohlone Tribe, 708 F.3d at 215. We
have held, “the recognition of Indian tribes remains a
political, rather than racial determination,” and we therefore
“appl[y] rational basis review.” 11 Kahawaiolaa, 386 F.3d at
1279 (analyzing whether Interior’s declaration that Part 83
precludes acknowledgment of Hawaiians is constitutional).
Rational basis review is deferential and requires courts to
uphold government actions “if there is a rational relationship
between the disparity of treatment and some legitimate
governmental purpose.” Id. (quoting Heller v. Doe, 509 U.S.
312, 319–20 (1993)).

    The three tribes that Interior has recognized outside of
the Part 83 process are: the Ione Band of Miwok Indians (the
“Ione”), the Lower Lake Rancheria, and the Tejon Indian
Tribe (the “Tejon”). First, Interior “clarif[ied]” the status of
the Ione and announced that the Ione would be included on
the list in 1994. Prior to 1995, the United States did not set

treat like cases alike. If the 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.”).
    11
        Discrimination on the basis of tribal membership or the
recognition of a tribe is political, but “[g]overnment discrimination
against Indians based on race or national origin” is subject to strict
scrutiny. Kahawaiolaa, 387 F.3d at 1279.
26          AGUA CALIENTE TRIBE V. SWEENEY

aside land for the Ione, although it did attempt to purchase
land for the Ione in the 1910s, the 1920s, and 1941, and
announced an intention to hold land in trust for the Ione in
1972.

    Second, Interior “reaffirm[ed] Federal recognition of
Lower Lake in 2000.” The United States had purchased land
for the Lower Lake Rancheria in 1916, attempted to
purchase additional land for the tribe in 1935, and granted an
assignment of land to the Lower Lake Rancheria in 1947. At
the same time that Interior records characterized the Lower
Lake Rancheria as “terminated,” Indian persons from the
Lower Lake Rancheria lineal descent continued to assert
their identity as a tribe and obtained funding from federal
government agencies to research their tribal status and
develop a tribal constitution, suggesting that the termination
status was an error.

    When adding the Lower Lake Rancheria to the list, the
Assistant Secretary emphasized the “long-standing
governmental relationship” of the Lower Lake Rancheria in
contrast to “groups that had previously been acknowledged,
but whose relationship with the Federal Government had not
continued to exist [and who] were subject to the
acknowledgment process.” Thus, a tribe whose relationship
with the United States was “continuous” might avoid Part
83, and one whose relationship had “lapsed” or
“administratively terminated” needed to petition through
Part 83. According to Interior, both the Ione and the Lower
Lake Rancheria decisions “found some evidence of
continuing Federal recognition in documentation of a
relationship with the Federal Government near the time of
the publication of the first list of federally recognized tribes
in 1979.”
             AGUA CALIENTE TRIBE V. SWEENEY                      27

    Third, in 2011, the Assistant Secretary began to include
the Tejon on the list. In 1851, the Tejon and the United
States entered into a treaty. In 1873, a reservation was
established by executive order for the Tejon and other bands
of Indians. Not all of the Tejon moved to the reservation,
and the federal government continued to try to secure lands
for the Tejon in three ways: by purchasing land (through the
1930s); through litigation (1920–24); and by securing public
lands (in 1916). In the 1960s and 1970s, Interior responded
to U.S. Senate inquiries about the Tejon and explained that
tribal members could remain on public lands for nominal
rent. Again, the Assistant Secretary explained the listing as
a product of an ongoing government-to-government
relationship that had never lapsed or been terminated.

    Just as the Cupeño seek exception to the Part 83 process
by analogy to those three tribes, so did the Muwekma. 12 The
Muwekma petitioned to be recognized and listed as a
federally recognized tribe. Muwekma Ohlone Tribe, 708
F.3d at 213. Ultimately, Interior denied the petition. Id. The
Muwekma then sued in federal court, where the “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 [] and the Lower Lake Rancheria []—outside the Part
83 process.” Id. at 214; see also id. at 215 (noting that this
claim was brought as an equal protection and an APA claim).
At the outset of the litigation, the district court required
Interior to supplement the record with a detailed explanation
of why it did not waive the Part 83 process for the
Muwekma. Id. After Interior provided that explanation, the

    12
       The Muwekma case preceded the listing of the Tejon, so their
equal protection claim was based only on comparisons to the Ione and
the Lower Lake Rancheria.
28          AGUA CALIENTE TRIBE V. SWEENEY

district court granted summary judgment for Interior, id.
at 215, and the D.C. Circuit affirmed, id. at 223. The courts
recognized that the Ione and the Lower Lake Rancheria “had
multiple post-1927 government-to-government interactions
with the United States,” whereas the Muwekma did not. Id.
at 216. Applying rational basis review, the D.C. Circuit held
that Interior had “adequately explained why Muwekma is
not similarly situated to Ione or Lower Lake,” and therefore
the Muwekma’s equal protection claim failed. Id. at 217.

    In the present case, the Assistant Secretary explained the
differential treatment of the Cupeño from the Ione, the
Lower Lake Rancheria, and the Tejon as follows: (1) “In
each of those reaffirmations, the group established ‘a pattern
of dealing with the [group] which evidences [its] long-
standing and continuing governmental relationship with the
United States’”; and, (2) the “major distinction” that “the
people now seeking Federal recognition as the Agua
Caliente Tribe of the Cupeño Indians of the Pala Reservation
are, or were until recently, members of the Pala Band of
Mission Indians, a federally recognized tribe,” whereas none
of the other reaffirmed tribes claimed to be withdrawing or
dissociating from a federally recognized tribe.

    The first “pattern of dealing” distinction is not elaborated
upon in the Assistant Secretary’s letter. The Cupeño
highlight that they, too, had early treaty and land
negotiations with the United States, and have continued to
be denoted separately in census and archaeological records.
This is not, however, the Assistant Secretary’s only
explanation for the differential treatment.

    The second “withdrawing or dissociating from a federal
recognized tribe” distinction satisfies rational basis review.
The Ione, the Lower Lake Rancheria, and the Tejon had not
in any way separated from a federally recognized tribe. The
              AGUA CALIENTE TRIBE V. SWEENEY                       29

Cupeño, in contrast, did have a recent association with the
PBMI. In a 2014 resolution, the Cupeño “immediately
withdr[e]w from the Association known as the Pala Band of
Mission Indians and the constitutional entity known as the
Pala Band of Mission Indians, Pala Band of Luiseño Mission
Indians of the Pala Reservation, California.” The Cupeño’s
reply brief concedes this distinction from the Ione, the Lower
Lake Rancheria, and the Tejon, stating that between the
publication of the first list in 1979 and the PBMI’s recent
disenrollment decisions, “the Cupeño enjoyed the benefits of
an active federal relationship that Ione, Lower Lake, and
Tejon did not enjoy during their own periods of absence
from the List.” 13

    There are specific Part 83 regulations for previously
recognized tribes, 25 C.F.R. § 83.12, and for a tribe that is
“[a] splinter group, political faction, community, or entity of
any character that separates from the main body of a
currently federally recognized Indian tribe,” id. § 83.4(b);
see also id. § 83.11(f). The word “splinter” may be
misleading or carry unfortunate negative connotations,
especially if, as the record suggests, two historically distinct
tribal entities had been recognized as one, the PBMI.
Additional language in the regulation about the perceptions
of a tribe’s associations with a federally recognized Indian
tribe is particularly poignant here. The section 83.11(f)
regulations are for separated groups that “some have
regarded . . . as part of or associated in some manner with a
federally recognized Indian tribe.” Id. § 83.4(b). This

    13
       At oral argument, the Cupeño clarified that their membership
includes individuals who were not disenrolled from the PBMI or who
were never members of the PBMI. This does not affect our analysis, and
the point could be developed in the Part 83 administrative process.
25 C.F.R. § 83.11(b), (f).
30            AGUA CALIENTE TRIBE V. SWEENEY

highlights the tension between federal recognition—which
must be determined by the federal government—and
inherent tribal sovereignty. Nonetheless, it is rational for
Interior to ask the Cupeño to demonstrate through the Part
83 process how they are a “distinct community” from the
PBMI and “politically autonomous” so that Interior may
make that federal-recognition determination. Id. § 83.11(b),
(f).

    Moreover, it is not inconsistent for Interior to change the
name of the PBMI in the Federal Register upon written
request. The PBMI has been federally recognized since
1979. While the Secretary of Interior had approved the
PBMI Constitution, which identified the tribe as the “Pala
Band of Mission Indians,” decades earlier, it listed them as
the “Pala Band of Luiseno Mission Indians” in the Federal
Register. Not requiring a recognized and listed tribe to
pursue a formal regulatory process for a name change—to
what its name already was in the Secretary-approved tribal
constitution—does not make Interior’s present requirement
that the Cupeño follow the regulatory process irrational. 14

   Interior’s explanation for treating the Cupeño differently
from the Ione, the Lower Lake Rancheria, and the Tejon, and

     14
       The Cupeño make much of the PBMI being called a “band” rather
than a “tribe” in its governing documents, in addition to attacking the
PBMI’s federal recognition. The validity of the PBMI’s status is not a
question before us. Moreover, Part 83 regulations define tribe as “any
Indian tribe, band, nation, pueblo, village or community.” 25 C.F.R.
§ 83.1. Certainly, the words may have different meanings and various
indigenous entities may identify differently. Whether a group is a
“band” or a “tribe” does not determine federal recognition. The
Cupeño’s arguments about historical distinctions between the Cupeño,
the Luiseño, and the PBMI can be considered by Interior during the Part
83 process. Id. § 83.11.
             AGUA CALIENTE TRIBE V. SWEENEY                    31

requiring the Cupeño to adhere to the administrative process
for federal recognition because many of the Cupeño were
recently members of the PBMI, passes muster. We agree
with the district court that Interior had a rational basis for not
making an exception to the Part 83 process for the Cupeño.

                               III.

    Although the political-question doctrine was cited by the
district court in its oral ruling, the Assistant Secretary does
not argue that it applies. The political-question doctrine does
not bar us from resolving the core issue in this case: whether
the Cupeño can secure listing outside of the Part 83 process.
See Kahawaiolaa, 386 F.3d at 1276 (recognizing that where
the executive branch had created regulations for the tribal-
recognition process, Interior’s decisions about recognition
and the regulations are subject to normal judicial review).

                               IV.

     The record in this case depicts some of the difficult
historic relations between the United States and Indian
tribes—the Cupeño were evicted from their indigenous lands
and relocated, by the federal government, to reside next to
another indigenous group despite potential conflict between
the two. At present, however, the federal government has an
administrative process by which tribes may petition for and
receive federal recognition. Where the Cupeño have not
pursued that process, and Interior has rationally
distinguished the Cupeño from the other tribes that were
listed outside of that process, we cannot order Interior to add
the Cupeño to the list of federally recognized tribes
published in the Federal Register. We affirm the district
court’s order granting summary judgment for Interior.

    AFFIRMED.
