In the
United States Court of Appeals
For the Seventh Circuit

No. 00-3465

Miami Nation of Indians
of Indiana, Inc., et al.,

Plaintiffs-Appellants,

v.

United States Department
of the Interior, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 92 C 586--Robert L. Miller, Jr., Judge.

Argued May 8, 2001--Decided June 15, 2001



  Before Bauer, Posner, and Coffey, Circuit
Judges.

  Posner, Circuit Judge. Article I of the
Constitution authorizes Congress to
regulate commerce with Indians. As an
original matter, the power to recognize
an Indian tribe might be thought
quintessentially and exclusively
Presidential, Western Shoshone Business
Council v. Babbitt, 1 F.3d 1052, 1057
(10th Cir. 1993), like the power to
recognize (or not recognize) a foreign
nation, Banco Nacional de Cuba v.
Sabbatino, 376 U.S. 398, 410 (1964)
("political recognition is exclusively a
function of the Executive"); Clark v.
Allen, 331 U.S. 503, 514 (1947); Mingtai
Fire & Marine Ins. Co. v. United Parcel
Service, 177 F.3d 1142, 1145 (9th Cir.
1999), even though Article I also gives
Congress the power to regulate foreign
commerce. But Indian tribes are not
foreign--they are what Chief Justice
Marshall called "domestic dependent
nations," Cherokee Nation v. Georgia, 30
U.S. (5 Pet.) 1, 12 (1831)--and the
general view nowadays, which none of the
parties to this suit has questioned
(though of course a concession on a
jurisdictional issue does not bind us),
is that Congress has the power, both
directly and by delegation to the
President, to establish the criteria for
recognizing a tribe. See, e.g., Cherokee
Nation of Oklahoma v. Babbitt, 117 F.3d
1489, 1503 (D.C. Cir. 1997); Fletcher v.
United States, 116 F.3d 1315, 1333 (10th
Cir. 1997); Western Shoshone Business
Council v. Babbitt, supra, 1 F.3d at
1056-57. This makes practical sense.
Congress has passed a number of statutes
granting various benefits and immunities
to Indian tribes, provided they are
recognized by the federal government.
See, e.g., Indian Self-Determination and
Education Assistance Act of 1975, 25
U.S.C. sec. 450b(b); Indian Financing Act
of 1974, 25 U.S.C. sec. 1452(c); see
Greene v. Babbitt, 64 F.3d 1266, 1269
(9th Cir. 1995). Naturally and
legitimately, Congress is concerned which
groups of Indians are given the status of
tribes. But the analogy to recognition of
foreign governments has prevailed to the
extent that 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. See 25 U.S.C. sec.sec. 2, 9.

  In 1978, the Department of the Interior
promulgated a regulation that sets forth
such criteria. A group of Indians that is
seeking recognition as a tribe entitled
to federal largesse (the regulation calls
recognition "acknowledgment" and the
terminology may be significant, as we’ll
see later) has to satisfy seven criteria:
(a) the group has been identified from
historical times to the present, on a
substantially continuous basis, as
Indian; (b) "a substantial portion of the
. . . group inhabits a specific area or
lives in a community viewed as American
Indian and distinct from other
populations in the area, and . . . its
members are descendants of an Indian
tribe which historically inhabited a spe
cific area"; (c) the group "has
maintained tribal political influence or
other authority over its members as an
autonomous entity throughout history
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 Indian tribe;
(g) the group’s status as a tribe is not
precluded by congressional legislation.
25 C.F.R. sec. 83.7. In 1980, the Miami
Nation of Indians of Indiana petitioned
Interior for recognition that it was an
Indian tribe. (Obviously the fact that it
calls itself a "nation" is not
dispositive.) Twelve years later,
Interior ruled that the Miami had not
satisfied criteria (b) and (c) (the ones
we quoted rather than paraphrased) of the
regulation and therefore would not be
recognized. 57 Fed. Reg. 27312 (1992).
The Miami Nation sought judicial review
in the district court and appeals to us
from that court’s decision upholding
Interior’s ruling. 112 F. Supp. 2d 742
(N.D. Ind. 2000). Earlier decisions by
the district court in this protracted
litigation are cited in the 2000 opinion.

  In 1854 the President of the United
States had made a treaty (ratified by the
Senate) with the "Miami Indians," 10
Stat. 1093, a tribe described in the
treaty as consisting of both "Indiana
Miamis" and "Western Miamis." Although
the matter is not free from doubt, we
shall assume that the Miami Nation,
though limited to Indiana Miamis, is the
tribe referred to in the 1854 treaty; and
it is obvious from the treaty that the
President recognized the tribe as being,
indeed, an Indian tribe. It is equally
obvious that Indian nations, like foreign
nations, can disappear over time--can go
the way of Sumeria, Phoenicia, Burgundy,
the Ottoman Empire, Prussia, the Republic
of Texas, and the Republic of Vietnam,
whether through conquest, or voluntary
absorption into a larger entity, or
fission, or dissolution, or movement of
population.

  In the century and a half since
President Pierce signed the treaty with
the Miami Indians, and especially since
1940, the Miami has dwindled. Today there
are only about 4,700 Indiana Miamis,
scattered across the nation, with only
one-third resident in a more or less
contiguous group of five Indiana
counties--in which, however, the Miamis,
who live dispersed throughout the area
rather than in their own separate
communities within it, constitute less
than one half of one percent of the
counties’ population. Only about 20
percent of this group socialize with one
another. On average only 3.5 percent
attend the annual reunion that is the
sole organized event of the group. We
were told at argument without
contradiction that it has been decades
since any member of the Miami Nation
sought to avail himself or herself of any
of the benefits or immunities that
Congress has extended to members of
recognized Indian tribes.

  There is a tribal council, but it
performs no meaningful governance
functions. There is scant contact between
the council and the rest of Indiana
Miamis, and the instances in which the
council has tackled important issues,
such as cemetery relocation, are few and
far between. Since 1940 the council has
rarely dealt with the kind of
governmental or political issues that
agitate tribes, including hunting and
fishing rights, disputes between tribal
factions, and loss of tribal lands. The
council has been more active since 1979,
when it bestirred itself to seek federal
recognition of the Miami Nation. It now
operates a number of programs concerned
with welfare (such as day-care programs)
and economic development, and it has
sought and obtained grants to fund these
programs. But such programs, charitable
rather than administrative in character,
are a far cry from "governance."

  The Indiana Miamis have thus failed to
satisfy the two quoted criteria in the
Department of the Interior’s regulation.
But they argue that the regulation is
invalid because not authorized by
Congress. This is clearly incorrect, see
25 U.S.C. sec.sec. 2, 9; James v. HHS,
824 F.2d 1132, 1137 (D.C. Cir. 1987);
Western Shoshone Business Council v.
Babbitt, supra, 1 F.3d at 1056-57; nor is
it clear that it has to be authorized by
Congress. Recognition is, as we have
pointed out, traditionally an executive
function. When done by treaty it requires
the Senate’s consent, but it never
requires legislation, whatever power
Congress may have to legislate in the
area. What is more, and placing in
question whether we are even authorized
to review the decision not to recognize
the Miami Nation, recognition lies at the
heart of the doctrine of "political
questions." The doctrine identifies a
class of questions that either are not
amenable to judicial resolution because
the relevant considerations are beyond
the courts’ capacity to gather and weigh,
see, e.g., Nixon v. United States, 506
U.S. 224, 228-29 (1993); Laurence H.
Tribe, American Constitutional Law, vol.
1, 365-85 (3d ed. 2000), or have been
committed by the Constitution to the
exclusive, unreviewable discretion of the
executive and/or judicial--the so-called
"political"--branches of the federal
government. Baker v. Carr, 369 U.S. 186,
217 (1962); Jones v. United States, 137
U.S. 202, 212 (1890); Tucker v. United
States Dept. of Commerce, 958 F.2d 1411,
1415 (7th Cir. 1992); Made in the USA
Foundation v. United States, 242 F.3d
1300, 1311-14 (11th Cir. 2001); Mingtai
Fire & Marine Insurance Co. v. United
Parcel Service, supra, 177 F.3d at 1144-
45; Gordon v. Texas, 153 F.3d 190, 193
(5th Cir. 1998); cf. Barclays Bank PLC v.
Franchise Tax Bd., 512 U.S. 298, 327-28
(1994); Banco Nacional de Cuba v.
Sabbatino, supra, 376 U.S. at 410.

  The second branch of the doctrine, which
is based on the extreme sensitivity of
the conduct of foreign affairs, judicial
ignorance of those affairs, and the long
tradition of regarding their conduct as
an executive prerogative because it
depends on speed, secrecy, freedom from
the constraint of rules--and the
unjudicial mindset that goes by the name
Realpolitik--is not engaged by a dispute
over whether to recognize an Indian
tribe. But the first branch, which
focuses on the nature of the questions
that the court would have to answer--
which asks whether the answers would be
ones a federal court could give without
ceasing to be a court, ones within the
cognitive competence, as distinct from
the authority, of federal judges--is
engaged by such a dispute. Consider the
case usually thought to have invented the
political-questions doctrine, Luther v.
Borden, 48 U.S. (7 How.) 1 (1849). Rather
than adopt a new constitution after the
break with England, Rhode Island
continued to use its colonial charter as
its constitution. This action (or rather
inaction) was unpopular. Restive citizens
convened a constitutional convention not
authorized by the charter. The convention
adopted a new constitution to which the
charter government, however, refused to
submit, precipitating rebellion and the
establishment in 1841 of a rival state
government. The Supreme Court refused to
decide which of the two competing state
governments was the legitimate one. It
would have been very difficult to gather
and assess, by the methods of litigation,
the facts relevant to such a decision,
and even more difficult to formulate a
legal concept of revolutionary legitimacy
to guide the decision.

  So if the residents of what was once the
Kingdom of the Two Sicilies asked a
federal court to recognize it as an
independent nation, the court would
invoke Luther v. Borden and tell them to
take up the matter with the State
Department. Cf. Clark v. Allen, supra.
The question whether the Miami Nation
constitutes a "nation" with a
"government" with which the United States
might establish relations is similar. It
comes as no surprise, therefore, that
"the action of the federal government in
recognizing or failing to recognize a
tribe has traditionally been held to be a
political one not subject to judicial
review." William C. Canby, Jr., American
Indian Law in a Nutshell 5 (3d ed. 1998);
see United States v. Holliday, 70 U.S. (3
Wall.) 407, 419 (1866); Cherokee Nation
of Oklahoma v. Babbitt, supra, 117 F.3d
at 1496; Western Shoshone Business
Council v. Babbitt, supra, 1 F.3d at
1057; Felix S. Cohen’s Handbook of
Federal Indian Law 3-4 (Rennard
Strickland ed. 1982).

  But this conclusion assumes that the
executive branch has not sought to
canalize the discretion of its
subordinate officials by means of
regulations that require them to base
recognition of Indian tribes on the kinds
of determination, legal or factual, that
courts routinely make. By promulgating
such regulations the executive brings the
tribal recognition process within the
scope of the Administrative Procedure
Act. Cf. Morton v. Ruiz, 415 U.S. 199,
235 (1974); Hein v. Capitan Grande Band
of Diegueno Mission Indians, 201 F.3d
1256, 1261 (9th Cir. 2000). And the Act
has been interpreted (1) to require
agencies, on pain of being found to have
acted arbitrarily and capriciously, to
comply with their own regulations
(whether formal, as here, or common-law-
type doctrines) until the regulations are
altered by proper procedures, Webster v.
Doe, 486 U.S. 592, 602 n. 7 (1988);
Service v. Dulles, 354 U.S. 363, 388
(1957); Head Start Family Education
Program, Inc. v. Cooperative Educational
Service Agency 11, 46 F.3d 629, 633 (7th
Cir. 1995); Cherokee Nation of Oklahoma
v. Babbitt, supra, 117 F.3d at 1499;
Florida Institute of Technology v. FCC,
952 F.2d 549, 553 (D.C. Cir. 1992);
Canby, supra, at 5, and (2) to make
compliance with the regulations
judicially reviewable, provided there is
law to apply to determine compliance, 5
U.S.C. sec. 701(a)(2); Webster v. Doe,
supra, 486 U.S. at 599-600; Heckler v.
Chaney, 470 U.S. 821, 830 (1985); Sprague
v. King, 23 F.3d 185, 188 (7th Cir.
1994)--as there is if despite the lack of
statutory criteria, the agency’s
regulation establishes criteria that are
"legal" in the sense not just of being
obligatory but of being the kind of
criteria that courts are capable of
applying. Ellison v. Connor, 153 F.3d
247, 251-52 (5th Cir. 1998); McAlpine v.
United States, 112 F.3d 1429, 1433-34
(10th Cir. 1997).

  As we explained in NLRB v. Kemmerer
Village, Inc., 907 F.2d 661, 663-64 (7th
Cir. 1990), with reference to the Labor
Board--but the point is equally
applicable to the Department of the
Interior--"no one questions the validity
of the doctrine [i.e., the NLRB’s rule
that an organization is exempt from the
National Labor Relations Act if it is
incapable of engaging in meaningful
collective bargaining] in this
proceeding. The only question is whether
the Board misapplied the doctrine in the
present case. This is a question for us
because the Board is bound by its own
rules until it changes them, Continental
Web Press, Inc. v. NLRB, 742 F.2d 1087,
1093 (7th Cir. 1984), including the rules
that it has adopted in order to channel
what would otherwise be an essentially
unreviewable discretion in the deployment
of its limited prosecutorial resources,
State Bank of India v. NLRB, 808 F.2d
526, 537 (7th Cir. 1986)." See also Motor
Vehicle Mfrs. Ass’n v. State Farm Mutual
Automobile Ins. Co., 463 U.S. 29 (1983);
Aramark Corp. v. NLRB, 179 F.3d 872, 882
(10th Cir. 1999) (en banc). To put it
more succinctly, the requirement of
reasoned decisionmaking--the requirement
that the APA places on agencies and that
sets them apart from legislatures--
implies that an agency may not deviate
from its regulations without a reason,
unlike a legislature, which can repeal a
statute without giving a reason for its
change of heart. See Continental Web
Press, Inc. v. NLRB, supra, 742 F.2d at
1093-94. "A rational person acts
consistently, and therefore changes
course only if something has changed."
Schurz Communications, Inc. v. FCC, 982
F.2d 1043, 1053 (7th Cir. 1992).

  Two exceptions should be noted. First,
as the "law to apply" provision of the
APA makes clear, the fact that a
regulation has been promulgated doesn’t
automatically make compliance with the
regulation a justiciable issue. It
depends on what the regulation says; it
may not set forth sufficiently "law like"
criteria to provide guideposts for a
reasoned judicial decision. Second,
whatever it says, the regulation will not
remove a case from the rule of that
branch of the political-questions
doctrine that is based not on the
analytical or epistemic limitations of
courts but on a lack of judicial
authority, that is, the assignment of ex
clusive decisionmaking responsibility to
the nonjudicial branches of the federal
government. If in a matter within his
exclusive authority the President wants
to regularize the exercise of discretion
by his subordinates, and to this end
promulgates a regulation, the regulation
does not empower the courts to jump in
and determine compliance with it; the
area is out of bounds for the courts. But
this case, as we have seen, is not ruled
by the second branch of the political-
questions doctrine, and so far as the
first branch is concerned McAlpine found
that another Indian regulation of the
Department of the Interior was a law-like
and hence justiciable rule; and the
existence of such a rule renders
inapplicable the only branch of the
political-questions doctrine that
pertains to the recognition of Indian
tribes. Florida v. United States
Department of the Interior, 768 F.2d 1248
(11th Cir. 1985), reached a contrary
conclusion from McAlpine, but only
because it disagreed that the regulation
in question was sufficiently directive to
count as law. Id. at 1256-57. It did not
disagree with the principle that McAlpine
expounded and we accept.

  The Department of Interior’s regulation
on recognition, the terms of which we
quoted or paraphrased earlier, breaks the
recognition issue down into a series of
questions that are "legal" in the
relevant sense, that is, are the sort of
questions that courts are equipped to
answer. The political-questions doctrine
is therefore not in play and does not
prevent the Miami Nation from arguing
that the Department of the Interior
committed error in the interpretation or
application of the regulation, as by
arbitrarily failing to recognize the
Miami Nation as a tribe when the
anthropologist that the Department itself
had retained to conduct a study of the
question recommended otherwise. There was
no error in the Department’s handling of
the anthropologist’s evidence, however.
The Department had not, by its action in
hiring an anthropologist to advise it,
delegated to her the authority to
determine whether the regulatory criteria
for recognition had been met. It could
not arbitrarily disregard the
anthropologist’s evidence, and it did
not. It reviewed her report and found
many errors and unsubstantiated
conclusion. And it obtained additional
information, after the anthropologist
submitted her report, that further
undermined the conclusions in it.

  The Miami Nation makes the additional
argument, however, that the Department
used the wrong standard when it refused
to recognize the Miami Nation as a tribe,
namely the standard applicable to the
recognition of a group of Indians that is
seeking tribal status for the first time,
a group never before recognized as a
tribe though it must have been a tribe
since "historical times" in order to be
eligible for recognition under the
regulation. The Miami Nation had been
recognized back in 1854--it was not
seeking recognition--and so the
applicable standard, it argues, is that
applicable to the abandonment of tribal
status. (Actually, recognition had been
withdrawn by the Department of the
Interior in 1897--invalidly, the Miami
Nation argues. We need not decide the
issue; we can ignore the 1897 demarche.)

  The Department ignored the distinction
between recognition and abandonment. The
regulation under which it preceded does
not mention "abandonment"; no regulation
does, so far as we have been able to
discover; and it might seem, therefore,
that we are back in the arena of
undomesticated discretion where either
the political-questions doctrine or the
APA’s "law to apply" provision bars
judicial review. But this is not so, and
for two reasons. First, if the Department
mistakenly proceeded under the
recognition regulation and as a result
did not exercise the discretion that it
has to determine abandonment, the remedy
is to remand for the exercise of that
discretion. See, for example, Chathas v.
Local 134 IBEW, 233 F.3d 508, 514 (7th
Cir. 2000); Channell v. Citicorp National
Services, Inc., 89 F.3d 379, 387 (7th
Cir. 1996); Campanella v. Commerce
Exchange Bank, 137 F.3d 885, 892 (6th
Cir. 1998). As we said in Channell,
"Because he held that sec. 1367(a) did
not authorize the exercise of
supplemental jurisdiction, [the district
judge] did not exercise the discretion
sec. 1367(c) confers. It belongs to him
rather than to us, so we remand for its
exercise." 89 F.3d at 387. Failure to
exercise discretion, however uncanalized
that discretion, is an abuse of
discretion.

  Second, the regulation does cover
abandonment. Just the fact that it uses
the term "acknowledgment" rather than
"recognition" is suggestive. The original
regulation, promulgated in 1978, allowed
a group seeking acknowledgment to prove
its satisfaction of the criterion of
having been known as an Indian tribe
since historical times by showing
"repeated identification by Federal
authorities." 25 C.F.R. sec. 83.7(a)(1).
This covers a previously recognized tribe
and by doing so implies that a tribe can
indeed cease to be recognized by failing
to satisfy the regulation’s criteria. The
regulation was amended in 1994 to require
previously recognized tribes to show only
that the criteria had been met since the
last time the tribe was recognized by the
federal government. See 59 Fed. Reg.
9280, 9282 (Feb. 25, 1994). This further
weakens the inference that the only basis
for withdrawal of recognition and hence
for the denial of the benefits and
immunities that Congress extends to
recognized tribes is "voluntary
abandonment" by the tribe.

  And what sense would that make? Few
nations dissolve or disband voluntarily
(Czechoslovakia is perhaps the clearest
recent example). It would be preposterous
to suppose that because the Republic of
Vietnam (i.e., South Vietnam) was
conquered rather than voluntarily uniting
with the People’s Democratic Republic of
Vietnam (North Vietnam), it must still be
recognized by the United States. If a
nation doesn’t exist, it can’t be
recognized, whether or not it ceased to
be a nation voluntarily. Our examples are
of foreign nations, but in respect to the
irrelevance of the cause of a nation’s
ceasing to be a nation the analogy of
Indian tribes to them is compelling.

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

  We are mindful of cases such as Mashpee
Tribe v. New Seabury Corp., 592 F.2d 575,
586-87 (1st Cir. 1979), which say that
"if a group of Indians has a set of legal
rights by virtue of its status as a
tribe, then it ought not to lose those
rights absent a voluntary decision made
by the tribe and by its guardian,
Congress, on its behalf." But such dicta
presuppose that the tribe still exists.
If it does, it cannot be divested of the
rights that go with tribal status without
its consent. But if it no longer exists,
it has no rights to be divested of; there
are no rights without a rights holder.
That is the case of the Indiana Miamis.

  So clear is this that if--as we do not
for a moment believe--there was any error
by the Department of the Interior in
failing to consider principles of tribal
abandonment explicitly instead of
proceeding under the recognition
regulation, it was a harmless one. And
the doctrine of harmless error is
applicable to administrative as to
judicial decisions. 5 U.S.C. sec.
706(2)(F); MBH Commodity Advisors, Inc.
v. CFTC, No. 00-1957, 2001 WL 476908, at
*10 (7th Cir. May 7, 2001); Sahara Coal
Co. v. Office of Workers’ Compensation
Programs, 946 F.2d 554, 558 (7th Cir.
1991); Sierra Club v. United States Fish
& Wildlife Service, 245 F.3d 434, 444
(5th Cir. 2001).

Affirmed.
