 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued April 7, 2016                   Decided July 19, 2016

                         No. 15-5118

                       MACKINAC TRIBE,
                         APPELLANT

                             v.

     SALLY JEWELL, U.S. SECRETARY OF THE INTERIOR,
                       APPELLEE


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:14-cv-00456)


    Michael J. Walleri, pro hac vice, argued the cause for
appellant. With him on the briefs was Ryan C. Posey.

     Nicholas A. DiMascio, Trial Attorney, U.S. Department
of Justice, argued the cause for appellee. With him on the
brief were John C. Cruden, Assistant Attorney General, Mary
Gabrielle Sprague, Attorney, and Matthew Marinelli,
Attorney.

    Before: BROWN, GRIFFITH and PILLARD, Circuit Judges.

    Opinion for the Court filed PER CURIAM.

    Concurring opinion filed by Circuit Judge BROWN.
                              2
     PER CURIAM: Plaintiff-Appellant Mackinac Tribe brought
an action in federal district court to compel the Secretary of
the Interior to convene an election allowing the Tribe to
organize under the Indian Reorganization Act (IRA), 25
U.S.C. § 476(a). Although the Mackinac Tribe does not
appear on the Secretary’s list of federally acknowledged tribes
and has not been acknowledged through the Secretary’s Part
83 process, see 25 C.F.R. pt. 83, the group alleges it is
federally recognized for IRA purposes because it is the
historical successor to a tribe the federal government
previously recognized via treaty. The district court reserved
the question of whether acknowledgment through Part 83 is a
necessary prerequisite for tribal organization under the IRA,
finding instead that the Mackinac Tribe failed to exhaust its
administrative remedies by first seeking acknowledgment
through the Part 83 process. We agree and affirm the district
court’s grant of summary judgment.

                              I

     To appreciate the Mackinac’s claim, we must look far
back into our Nation’s history. Between 1785 and 1855, the
United States entered into numerous treaties with a group of
Native Americans known as the Ottawa and Chippewa
Nation.    These people were located in Michigan and
comprised several autonomous tribes linked by similar culture
and shared language—of which the Mackinac were one. For
ease of administrability, the government referred to and
negotiated with these tribes collectively as the “Ottawa and
Chippewa Nation of Indians.” See, e.g., Treaty with Ottawa
and Chippewa, 7 Stat. 491 (Mar. 28, 1836). An 1836 treaty,
however, singled out the Mackinac Tribe (then referred to as
the Michilimackinac) to create a temporary five-year
reservation for its bands. See id. Art. 3.
                               3
     Two decades later, the federal government encountered
resistance when it tried to negotiate collectively with this
group of bands. The various groups insisted on negotiating
independently and further demanded the government dissolve
the Ottawa and Chippewa Nation. See Treaty with the Ottawa
and Chippewa, 11 Stat. 621, Art. 5 (July 31, 1855). As part of
an 1855 treaty, the government agreed to dissolve the Nation.
Id.    Relevant to this litigation, the government also
purportedly set aside two land withdrawals for the exclusive
use of the Mackinac Tribe. Twenty years later, though, the
Secretary of the Interior terminated all federal services to the
Mackinac.

     Most recently, in 2011, several Mackinac groups
consolidated to conduct an election under the IRA. To
qualify for benefits under the IRA, tribes must meet certain
conditions set by federal law. “The most important condition
is federal recognition, which is a ‘formal political act
confirming the tribe’s existence as a distinct political society,
and     institutionalizing   the    government-to-government
relationship between the tribe and the federal government.’”
California Valley Miwok Tribe v. United States, 515 F.3d
1262, 1263 (D.C. Cir. 2008) (quoting COHEN’S HANDBOOK OF
FEDERAL INDIAN LAW § 3.02[3], at 138 (2005 ed.)). The
definition of “recognition” has evolved over time but
historically the United States recognized tribes through
treaties, executive orders, and acts of Congress. See Harry S.
Jackson III, Note, The Incomplete Loom: Exploring the
Checkered Past and Present of American Indian Sovereignty,
64 RUTGERS L. REV. 471, 478 (2012). In 1871, Congress
abolished the practice of treatymaking after several tribes
allied themselves with the Confederacy during the Civil War
and the military advantage of the treaties declined. See id. at
476 & n.28. However, treaties that had been entered into
prior to 1871 were still recognized. See 25 U.S.C. § 71.
                                4
     In 1934, Congress codified its treatment of Indian tribes
through the IRA. The IRA defines the term “Indian,” in part,
to “include all persons of Indian descent who are members of
any recognized Indian tribe now under Federal jurisdiction.”
25 U.S.C. § 479 (emphasis added). The Supreme Court has
interpreted the phrase “now under Federal jurisdiction” to
refer only to tribes that were under federal jurisdiction in
1934—the time of the IRA’s enactment. See Carcieri v.
Salazar, 555 U.S. 379, 382–83 (2009). The Court has not
analyzed the meaning of the word “recognized” nor has it
determined whether recognition must have existed in 1934.

     Recognition by the federal government proceeded in an
ad hoc manner, even after the passage of the IRA, with the
Bureau of Indian Affairs (BIA) reviewing petitions for federal
recognition on a case-by-case basis. Muwekma Ohlone Tribe
v. Salazar, 708 F.3d 209, 211 (D.C. Cir. 2013). Finally, in
1978, Interior promulgated Part 83 of its regulations under the
IRA (also known as the Federal Acknowledgment Process),
which set out uniform procedures through which Indian
groups could seek formal recognition. A group seeking
recognition under Part 83 must submit a petition to Interior
documenting certain criteria, including whether it has been
identified as an American Indian entity on a “substantially
continuous basis” since 1900; whether it comprises a “distinct
community;” whether it has historically maintained “political
influence or authority over its members;” and whether its
membership “consists of individuals who descend from a
historical Indian tribe.” See 25 C.F.R. § 83.11(a)-(c), (e). If a
group successfully petitions, it is added to the list of federally
recognized Indian tribes published by Interior. See 25 U.S.C.
§ 479a-1.

    With respect to tribal organization, the IRA directs: “Any
Indian tribe shall have the right to organize for its common
                                  5
welfare, and may adopt an appropriate constitution and
bylaws.” 25 U.S.C. § 476(a). In 1981, Interior promulgated
specific regulations governing this process in Part 81 of its
regulations. See 25 C.F.R. pt. 81. Part 81 states, in broad
terms, that any Indian tribe “included on” the list of federally
recognized tribes or “eligible to be included” on that list can
call for an election under the IRA. 1 See 25 C.F.R. § 81.1(w)
(2014). Interior is obligated to hold such an election—
assuming the tribe qualifies—within 180 days of receipt of a
tribal request. 25 U.S.C. § 476(c)(1)(A). If a majority of the
adult members of a tribe vote to ratify the constitution, then
Interior must approve the document unless it violates federal
law. Id. § 476(d)(1).

     In August 2011, the Mackinac Tribe submitted a petition
for a Part 81 election to the Secretary of Interior. The
Secretary refused to conduct the election. The Tribe then
brought an action in federal district court seeking declaratory
and mandamus relief; specifically, it asked the court to
declare it a federally recognized Indian tribe and to order the
Secretary to conduct an election under the IRA. The
Secretary filed a motion to dismiss, arguing (in relevant part)
that the Mackinac were not a federally recognized tribe for
IRA purposes because they had not gone through the Part 83
acknowledgment process and therefore had failed to exhaust
their administrative remedies. The district court converted the
motion to dismiss into a motion for summary judgment and
ruled for the Secretary.

1
  Notably, while this litigation was pending, Part 81 was amended
to alter the definition of a “tribe” for election eligibility purposes.
“Tribe” is now defined to mean any tribe “listed in the Federal
Register . . . as recognized and receiving services” from BIA. 25
C.F.R. § 81.4. Both parties in their briefing rely on the old Part 81
definition—which was in effect at the time the Mackinac petitioned
the Secretary—so we cabin our discussion to the earlier provision.
                              6
     In doing so, the court below declined to answer whether
recognition under Part 83 is a necessary precursor to receiving
an election under Part 81. The district court instead found the
Tribe had to exhaust its administrative remedies by availing
itself of the Part 83 process first. We review de novo the
district court’s grant of summary judgment, Colbert v. Potter,
471 F.3d 158, 164 (D.C. Cir. 2006), and we affirm.

                                  II

     The district court applied our closest precedent. In James
v. U.S. Department of Health and Human Services, we held
that, as a matter of prudential exhaustion, a group of Indians
seeking to be acknowledged by the Secretary as a federally
recognized tribe must first attempt to gain that
acknowledgement through the Part 83 process. 824 F.2d
1132, 1136–37 (D.C. Cir. 1987). In Muwekma Ohlone Tribe
v. Salazar, we followed James and made clear that a tribe
seeking to be acknowledged by the Secretary must pursue the
Part 83 process even if the tribe claims, as the Mackinac Tribe
does here, that it has previously been recognized by the
federal government. 708 F.3d 209, 218–19 (D.C. Cir. 2013).

     The Mackinac Tribe seeks relief different from what the
tribes in James and Muwekma Ohlone sought—a secretarial
election under the IRA rather than inclusion on the
Secretary’s list of federally acknowledged tribes—but the
rationale of those cases has persuasive force here as well. The
Mackinac Tribe contends that, because it is a recognized tribe,
it is eligible for a secretarial election. But no branch of
government has determined whether the plaintiff Mackinac
Tribe currently qualifies as a recognized tribe or as the tribe
that was recognized in 1855.
                                7
     Our decisions in James and Muwekma Ohlone teach that,
when a court is asked to decide whether a group claiming to
be a currently recognized tribe is entitled to be treated as such,
the court should for prudential reasons refrain from deciding
that question until the Department has received and evaluated
a petition under Part 83. James gave good reasons for that
restraint. Congress delegated to the Secretary the regulation
of Indian relations and affairs, see generally 25 U.S.C. § 2,
including authority to decide in the first instance whether
groups have been federally recognized in the past or whether
other circumstances support current recognition. James, 824
F.2d at 1137. The administrative exhaustion requirement
honors that delegation. It also protects the autonomy of the
agency that has the expertise to make (and correct) such
determinations, preserves judicial resources, and better tees
up disputes for eventual judicial review. See id. at 1137–38;
see also United Tribe of Shawnee Indians v. United States,
253 F.3d 543, 550 (10th Cir. 2001) (following James to
conclude that “exhaustion is required when, as here, a
plaintiff attempts to bypass the regulatory framework for
establishing that an Indian group exists as an Indian tribe.”).
Those prudential considerations apply to this case.

     As the district court did, we reserve the question whether
a group must be recognized to be eligible to organize under
the IRA and whether that recognition must be marked by the
group’s appearance on the Secretary’s list of federally
recognized tribes. In view of that reservation, we must
acknowledge that our holding gives us some pause. If federal
recognition is not a prerequisite to organization, requiring
exhaustion via the lengthy and expensive Part 83 process
unnecessarily imposes a potentially formidable hurdle on
tribes seeking the Secretary’s assistance to organize. We
decline, however, to order the Secretary to call and conduct an
election to ratify the Mackinac Tribe’s constitution under
                              8
§ 476 of the IRA. We read the Mackinac Tribe’s complaint
as seeking a writ of mandamus. Mandamus is only available
in extraordinary circumstances when the plaintiff has a “clear
and indisputable” right, and review by other means is not
possible. Cheney v. U.S. District Court for the District of
Columbia, 542 U.S. 367, 380–81 (2004). Given the interplay
of recognition, acknowledgment, and organization, there is
some question whether the Mackinac Tribe has a right to a
secretarial election. Even assuming the Mackinac Tribe has a
“clear and indisputable right,” we decline the requested
mandamus because review will be possible after the Mackinac
Tribe has completed the Part 83 procedure. See W. Shoshone
Bus. Council v. Babbitt, 1 F.3d 1052, 1059 (10th Cir. 1993).

                                  III

   For the foregoing reasons, the district court’s grant of
summary judgment is
                                                      Affirmed.
                               1
     BROWN, Circuit Judge, concurring: Patience may be a
virtue but there’s nothing virtuous about the administrative
delays the BIA has routinely forced recognition-seeking
Indian tribes to endure.       “At present day, a federal
acknowledgment petition can be over 100,000 pages long and
cost over $5 million to assemble; the BIA estimate time for
completion of the review is 30 years.” See Harry S. Jackson
III, Note, The Incomplete Loom: Exploring the Checkered
Past and Present of American Indian Sovereignty, 64
RUTGERS L. REV. 471, 497 (2012). That means a case worker
could start the review process her first day at BIA and retire
with her full pension before ever completing it. That’s
appalling.

     The Part 83 process begins when a tribe’s governing
body submits a letter of intent to the Assistant Secretary of the
BIA. The agency then publishes the requisite public notices
and begins an administrative file for the tribe—now
considered a “petitioner.” At this point, it is incumbent on the
petitioning tribe “to provide enough historical documentation
to satisfy the seven criteria established by [Part 83] to
determine if the tribe is a ‘political and social community that
is descended from a historical tribe.’” Id. Answering this
question is admittedly a nuanced and time-consuming
process, requiring agency expertise.          By the end, the
administrative record tends to range “in excess of 30,000
pages to over 100,000 pages.” Barbara N. Coen, Tribal Status
Decision Making: A Federal Perspective on Acknowledgment,
37 NEW ENG. L. REV. 491, 495 (2003).

    Mindful of the intensity of this task—and the agency’s
unique capacity for completing it—I agree that exhaustion
should be required here, but I do so hesitantly. I believe we
would be remiss to treat this as a run-of-the-mill case of
administrative exhaustion. Exhaustion might reasonably take
                                  2
months—maybe years—but certainly not generations. For
instance, the resolution of an IRS appeal may take “anywhere
from 90 days to a year” depending on facts and
circumstances. What You Can Expect From Appeals?, IRS
(May 23, 2016), https://www.irs.gov/individuals/what-can-
you-expect-from-appeals.       An individual appealing the
termination of her disability benefits can expect that appeal to
be decided “in as little as four weeks or as long as twelve
weeks.” How Long Does A Social Security Disability
or SSI Appeal Take?, SOC. SEC. DISABILITY RES.
CTR., http://www.ssdrc.com/disabilityquestions2-46.html (last
viewed July 8, 2016). And in 2015, it took the EEOC, on
average, “10 months to investigate a charge.” What You Can
Expect After You File A Charge, EQUAL EMP. OPP. COMM.
(last viewed July 8, 2016), https://www.eeoc.gov/employees
/process.cfm. Compare this with the Cowlitz Tribe of
Washington’s experience with the acknowledgment process:
the tribe first petitioned the government for recognition in
1975 and only received it in 2000—twenty five years later.
See Sarah Washburn, Note, Distinguishing Carcieri v.
Salazar: Why the Supreme Court Got It Wrong and How
Congress and Courts Should Respond to Preserve Tribal and
Federal Interests in the IRA’s Trust-Land Provisions, 85
WASH. L. REV. 603, 629 (2010). Requiring exhaustion in this
context asks far more of tribes like the Mackinac than it does
in our usual administrative cases. 2

2
  It is worth mentioning that “exhaustion is not required when
unreasonable administrative delay would render the administrative
remedy inadequate.” Sw. Bell Tel. Co. v. FCC, 138 F.3d 746, 750
(8th Cir. 1998); see also Gibson v. Berryhill, 411 U.S. 564, 575
n.14 (1973) (nothing that when administrative remedies are deemed
inadequate it is “[m]ost often . . . because of delay by the agency”);
Smith v. Illinois Bell Tel. Co., 270 U.S. 587, 591–92 (1926)
(holding a petitioner “is not required indefinitely to await a decision
of the rate-making tribunal before applying to a federal court for
                                 3
     The acknowledgement process also requires tribes to
sacrifice more than just time. “Volumes of documentary
support are required of petitioners chronicling the genealogy,
ethno-history, and political life of the group seeking
recognition.” Gerald Carr, Origins and Development of the
Mandatory Criteria Within the Federal Acknowledgment
Process, 14 RUTGERS RACE & L. REV. 1 (2013). Indeed,
“[t]he creation of the documents alone has been estimated to
take between two-and-a-half and five years.” Alva C. Mather,


equitable relief”). Tribes languishing in the Part 83 process have
occasionally sought relief under this “unreasonable delay” doctrine.
For instance, in Muwekma Tribe v. Babbitt, the district court
granted mandamus relief to the Muwekma Tribe—which entered
into the Part 83 process in 1989 and had yet to receive a
determination as of 2000. 133 F. Supp. 2d 30, 32–33 (D.D.C.
2000). In doing so, the court analyzed the factors we laid out for
assessing unreasonable delay in TRAC v. FCC, 750 F.2d 70 (D.C.
Cir. 1984), and concluded that factors like the decision’s slow pace
and the nature and extent of the interests prejudiced warranted
relief. See Muwekma Tribe, 133 F. Supp. 2d at 36–41. It may
seem, then, that the Mackinac Tribe could avail itself of this
judicial remedy once it enters into the Part 83 process, assuming it
experiences a similar delay. However, a more recent case from our
circuit calls even that potential avenue for relief into question. In
Mashpee Wampanoag Tribal Council, Inc. v. Norton, we
emphasized that Part 83 delays were “attributable, at least for the
most part, to a shortage of resources addressed to an extremely
complex and labor-intensive task.” 336 F.3d 1094, 1100 (D.C. Cir.
2003). We therefore remanded to the district court to consider
whether such “competing priorities” rendered the delay reasonable
in context, specifically whether the tribe was being treated
differently than others and whether the agency was working on the
matter. See id. at 1101–02. As the Mashpee court noted, a
“problem stemm[ing] from a lack of resources” is “a problem for
the political branches to work out.” Id. at 1101. Unfortunately for
the Mackinac Tribe, Congress has yet to heed this call.
                               4
Comment, Old Promises: The Judiciary and the Future of
Native American Federal Acknowledgment Litigation, 151 U.
PA. L. REV. 1827, 1840 (2003). The burden falls to the tribe
to “hire an array of experts: anthropologists to validate the
existence of a current tribal community, genealogists to trace
tribal ancestry, and lawyers to oversee the process.” Id. “On
average, tribes have paid between $300,000 and $500,000 for
the creation of their petition” and some have paid “more than
a million dollars for their documentation.” Id.

     Beyond tangible investments like time and money, the
process is also emotionally draining. To be acknowledged,
tribes must reveal “their members’ personal stories and the
community’s history to a federal agency,” with that
information then becoming part of the public record. Id. at
1141. For some tribes, “disclosing information about their
community life violates their traditions and results in
considerable emotional loss when this information is revealed
to individuals outside the tribe.” Id. And the passage of time
can ultimately preclude a tribe from obtaining necessary
documentation, particularly when important tribal leaders
“who may have been able to provide necessary first-hand
information to federal investigators” die while the tribe’s
petition is pending. Id.

     One would hope, given the significant amount of
resources required to navigate this bureaucratic morass, that
the process itself would at least be sound. But the process has
been criticized—including by a Government Accounting
Office report—for its “lack of transparency,” for the
regulations’ “vague[ness],” and for the “improper[] influence”
that gaming concerns exert on the agency. Roberto Iraola,
The Administrative Tribal Recognition Process and the
Courts, 38 AKRON L. REV. 867, 892–83 (2005). What’s more,
it seems the vast majority of tribes that were already federally
                              5
acknowledged would be unable to meet the current Part 83
standards. See Jackson, supra, at 507 (noting that, in 2010,
the BIA recognized “72% . . . of currently recognized federal
tribes could not successfully go through the [Part 83] process
as it is being administered today”).

    Despite my significant concerns about both the length
and the integrity of this process, I agree that the Mackinac
Tribe must at least try to exhaust its administrative remedies
in this context—which is far outside the judiciary’s
wheelhouse. Still, we are reminded today that Justice
Douglas’s words ring as true now as they did nearly half a
century ago: “The bureaucracy of modern government . . . is
slow, lumbering, and oppressive.” Wyman v. James, 400 U.S.
309, 335 (1971) (Douglas, J., dissenting).
