1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CAYUGA NATION,

Plaintiff,

v. Case No. 1:20-cv-3179-RCL

UNITED STATES OF AMERICA, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Cayuga Nation (“the Nation”) is an Indian nation located within a reservation in 

the State of New York. The Bureau of Indian Affairs has recognized the Halftown Council—a sixmember Cayuga Nation Council led by Clint Halftown—as the Nation’s lawful governing body, 

but an opposing Council in the Nation disputes this recognition. Admin. R. (“AR”) 27, 

ECF No. 25. The Nation, under the Halftown Council’s leadership, established the Cayuga Nation 

Police Department (“Nation PD”). Id. at 68. The Nation PD then applied to the Federal Bureau of 

Investigations (“FBI”) for an Originating Agency Identification Number (“ORI”), which would

allow the Nation PD to access FBI-administered criminal databases. Id. Under the Tribal Law and 

Order Act of 2010 (“TLOA”), the FBI must treat “tribal justice official[s] serving an Indian tribe 

with criminal jurisdiction over Indian country” as law enforcement officials and grant them access 

to federal criminal information databases. 34 U.S.C. § 41107(3); 28 U.S.C. § 534(d). But the FBI 

declined to grant the Nation PD an ORI, citing the potential leadership dispute in the Nation.

AR 484, 963. 

The Nation filed this action to challenge that decision under the Administrative Procedure 

Act (“APA”). It argued that the FBI’s decision was both arbitrary and capricious and not in 
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accordance with law, and asked this Court to vacate the FBI’s denial, “[d]eclare that Cayuga 

Nation is entitled to an ORI and to access to the federal criminal databases maintained by the FBI,” 

and “enter an injunction [pursuant to 5 U.S.C. § 706(1)] requiring the FBI to grant the Nation’s 

application.” Am. Compl. ¶¶ 118–20, ECF No. 12. Now, both parties move for summary 

judgment. Defs.’ Mot., ECF No. 16; Pl.’s Mot., ECF No. 19.1 Upon consideration of the parties’ 

filings, applicable law, and the record herein, the Court will GRANT IN PART and DENY IN 

PART the Nation’s motion for summary judgment and GRANT IN PART and DENY IN PART

the FBI’s motion for summary judgment. For the reasons below, the Court finds that the FBI’s 

decision was arbitrary and capricious and will VACATE the FBI’s decision. But injunctive relief 

under § 706(1) is not warranted here at this time. 

I. BACKGROUND

A. The Cayuga Nation And Its Leadership 

The Cayuga Nation resides within what is now considered Cayuga and Seneca Counties, 

New York. Pl.’s Mot. 6. In 1794, the federal government recognized a 64,015-acre reservation for 

the Nation and promised it would remain the Nation’s until a time when the Nation would “choose 

to sell [it] to the people of the United States.” Treaty of Canandaigua of 1794, art. II, Nov. 11, 

1794, 7 Stat. 44, 45. Despite this promise, the State of New York unlawfully purchased the 

reservation lands in the late eighteenth and early nineteenth centuries. Cayuga Indian Nation of 

N.Y. v. Pataki, 413 F.3d 266, 268 (2d Cir. 2005). Recently, the Nation has repurchased properties 

within the reservation and begun to re-establish its homeland. Pl.’s Mot. 6. All federal courts who 

have considered the question have concluded that the Nation’s reservation still legally exists. 

1 Defendant replied the Nation’s motion for summary judgment, Defs.’ Reply, ECF No. 22, and the Nation replied to 

Defendant’s motion for summary judgment, Pl.’s Reply, ECF No. 24. 
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Cayuga Nation of N.Y. v. Seneca Cnty., 260 F. Supp. 3d 290, 307–315 (W.D.N.Y. 2017) (collecting 

cases).

All parties acknowledge the leadership dispute in the Nation that spans decades. 

Pl.’s Mot. 16; Defs.’ Mot. 8. The Nation adheres to the Haudenosaunee Great Law of Peace, an 

“oral, unwritten law.” Defs.’ Mot. 8 (citing Cayuga Nation v. Bernhardt, 374 F. Supp. 3d 1, 5 

(D.D.C. 2019)). The governing body of the Nation has historically been the six-member Cayuga 

Nation Council (“CNC”). Id. Clint Halftown has been a member of the CNC for decades. 

Pl.’s Mot. 16 (citing Cayuga Nation, 374 F. Supp. at 6). In 2004, the Nation’s Clan Mothers 

attempted to remove Halftown, Tim Twoguns, and Gary Wheeler from the CNC. Defs.’ Mot. 9. 

The Clan Mothers maintain that they have the authority to appoint and remove members of the 

CNC. Id. But even after the Clan Mothers’ 2004 removal attempt, the BIA continued to recognize 

Halftown as both a legitimate member of the CNC and the federal representative of the Nation. 

Defs.’ Mot. 9; Pl.’s Mot. 16. 

In 2011, the Clan Mothers tried again to remove Halftown, Twoguns, and Wheeler from 

the CNC. Defs.’ Mot. 9. While the BIA originally recognized the new CNC without Halftown (the 

“Jacobs Council”) as the legitimate governing body of the Nation, the Interior Board of Indian 

Appeals (“IBIA”) vacated the BIA’s decision, declining to involve itself in the tribal leadership 

dispute unless necessary. See Cayuga Nation v. E. Reg’l Dir., BIA, 58 IBIA 171 (2014). During 

this period, the Jacobs Council took possession of the Nation’s security offices and other property. 

Pls.’ Mot. 16. Halftown, Twoguns, and Wheeler maintained that they were still part of the properly 

constituted CNC (the “Halftown Council”) and that the Jacobs Council was not a legitimate 

governing body. Id.
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After years of dispute between the two CNCs, in 2016, the Halftown Council sent the 

citizens of the Nation a document requesting a referendum on the proper CNC leadership. AR 18. 

The Halftown Council maintains that this “statement of support” process is contemplated under 

the Haudenosaunee Great Law of Peace, which provides that when an “especially important matter 

of great emergency” arises, the issue may be submitted to the people to make a decision. Id. at 19. 

The Jacobs Council disagreed, arguing that the statement of support process runs counter to the 

Nation’s law. Id. at 20. Pursuant to the “statement of support” process, 237 of the 392 adult Cayuga 

Nation citizens identified on the Nation membership roll supported the Halftown Council. Id. at 

18.

Eventually, the BIA could no longer abstain from the Nation’s dispute. Both the Halftown 

Council and the Jacobs Council applied for various federal contracts, each representing themselves 

as the legitimate governing body for the Nation. Id. The BIA, facing these competing contract

applications from the opposing Councils, concluded that the statement of support process was a 

valid exercise of Nation law. Id. The BIA reasoned that, as evidenced by the Haudenosaunee Great 

Law of Peace, governance within the Nation on its most basic level “derives from the consent of 

the governed.” Id. at 19. Accordingly, the “statement of support” could not be denied without 

denying the Nation’s citizens “their fundamental human right to have a say in their own 

government.” Id. at 20. Based on this conclusion, the BIA recognized the Halftown Council as the 

governing body of the Nation. Id. at 27. Three years later, in 2019, Assistant Secretary for Indian 

Affairs Tara Sweeney issued a letter confirming this decision and stating that the “Halftown 

Council is the Nation’s government for all purposes.” Id. at 892.

After the statement of support and the BIA’s decision, the Nation, led by the Halftown 

Council, established the Office of the Commissioner of Public Safety. AR 68. Arthur Pierce, a 
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former Captain of the New York State Police, was appointed as the first Public Safety 

Commissioner and Chief of Police. Id. Pierce then established the Nation PD as its police force. 

Id. Colonel Mark Lincoln, a former member of the New York State Police, was appointed the 

Superintendent of Police, and other members of the police force were hired—often former New 

York State Police officers. Id. at 98.

In February 2020, pursuant to a “warrant from the Nation’s court,” the Nation PD moved 

to reclaim possession of buildings that it alleged the Jacobs Council had seized in 2014. Pl.’s 

Mot. 19. In a middle-of-the-night raid, the Nation PD detained eight individuals at gunpoint, issued 

criminal trespass complaints, and ultimately used bulldozers to demolish the “seized” buildings. 

Pl.’s Mot. 21; Defs.’ Mot. 11; AR 904. A few days later, tribal members planned protests at the 

site of the demolished buildings. Pl.’s Mot. 21; Defs.’ Mot 12. A confrontation between the 

protesters and Nation PD officers present at the protest turned violent. Pl.’s Mot. 21; Defs.’ Mot 12. 

One Nation PD officer was hospitalized and the scene required non-tribal state and local police 

departments to respond. Pl.’s Mot. 21–22; Defs.’ Mot 12. 

B. The National Crime Information Center, Originating Agency Identifiers, And The 

Tribal Law And Order Act Of 2010

The FBI maintains the National Crime Information Center (“NCIC”)—a database that 

allows local, state, tribal, federal, foreign, and international criminal justice agencies to access 

criminal justice records. 28 C.F.R. § 20.3(n). The NCIC database includes sub-databases or “files” 

like the Known or Suspected Terrorist file, the Wanted Person file, the National Sex Offender 

Registry, the Violent Person file, the Protection Order file, the Missing Person file, and files related 

to other specific groups or stolen property. National Criminal Information Center, Fed. Bureau of

Investigation, available at https://www.fbi.gov/services/cjis/ncic. A law enforcement agency that 

wants to access the NCIC needs an ORI. AR 939. The ORI is a unique number signifying that an 
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agency met particular qualifying criteria. 28 C.F.R. § 25.2. To receive an ORI, a law enforcement 

agency must proffer evidence of its statutory authority, budget, documentation officially creating 

the agency, documentation of the duties and functions of the agency, and documentation 

confirming that the officers are state or federally trained and certified. AR 946. 

The Tribal Law and Order Act of 2010 (“TLOA”) provides tribes with, among other things, 

access to national criminal databases like the NCIC. Tribal Law and Order Act of 2010, Pub. L.

No. 111-211, 12 Stat. 2279 (2010). Relevant to this case, the TLOA requires that:

(1) The Attorney General shall ensure that tribal law enforcement 

officials that meet applicable Federal or State requirements be 

permitted access to national crime information databases. 

* * *

(3) Each tribal justice official serving an Indian tribe with criminal 

jurisdiction over Indian country shall be considered to be an 

authorized law enforcement official for purposes of access to the 

National Crime Information Center of the Federal Bureau of 

Investigation.

Id. § 233(b) (codified at 34 U.S.C. § 41107(1), (3)) (emphasis added). The TLOA also mandates 

that the “Attorney General shall permit tribal and [BIA] law enforcement agencies . . . (1) to access 

and enter information into Federal criminal information databases; and (2) to obtain information 

from the databases.” Id. § 233(a) (codified at 28 U.S.C. 534(d)). 

C. The Nation’s ORI Application And The FBI’s Determination

On March 28, 2018, the Nation PD submitted its first ORI application to Thomas J. 

Cascone, who worked for the New York State Police (a Criminal Justice Information Services 

Division Systems agency).2 AR 68–69. Cascone forwarded the application to the FBI, which 

2 Tribal law enforcement agencies submit ORI applications either through a state Criminal Justice Information 

Services Division System agency, like the New York State Police, or the United States Department of Justice Office 

of Tribal Justice Tribal Access Program. AR 939. 
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denied the request after determining that the Nation PD was not an authorized criminal justice 

agency as defined in 28 C.F.R. § 20. Id. at 65. Though the FBI twice informed Cascone of this 

decision, the Nation alleges that it never received those communications. Id. at 65, 82; 

Am. Compl. ¶ 66. 

In April 2020, the Nation PD renewed its request for an ORI through Cascone. AR 484. 

Cascone again contacted the FBI, which agreed to accept the Nation PD’s complete ORI 

application. Id. at 483. The Nation PD’s newly submitted application on June 5, 2020, included, 

among other things, a map of the Nation’s reservation, a letter detailing its authority to form a 

police force, a Nation PD policy manual, Nation PD officer resumes, the Nation’s Rules of 

Criminal Procedure and Penal Code, the letter from Assistant Secretary Sweeney declaring 

Halftown Council the governing body of the Nation “for all purposes,” and the Nation PD budget. 

AR 482. 

Just five days later, the FBI denied the Nation PD’s application and found it was “not an

authorized criminal justice agency performing the administration of criminal justice.” AR 487. 

After the Nation PD requested a formal denial, the FBI issued a two-page letter explaining its 

reasoning. Id. at 484, 882–83. In that denial letter, the FBI cited the fact that “the Tribe does not 

have lands in Trust”; the fact that the New York Court of Appeals recently identified a “serious 

dispute about who represents the lawful government” of the Nation; the fact that the Department 

of the Interior “does not have any relationship” with the Nation PD; and the fact that the BIA had 

not “commissioned” the Nation PD. Id. at 484. 

The Nation PD moved for reconsideration. Id. at 885. It contested several of the FBI’s 

contentions, noting that the lack of “lands in trust” or whether it had a relationship with the BIA 

was irrelevant to whether the Nation PD were tribal justice officials with criminal jurisdiction over 
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Indian country. Id. It also highlighted the 2019 letter from Assistant Secretary Sweeney and the 

BIA’s determination that the Halftown Council was legitimate “for all purposes.” Id.

For months, the FBI did not respond to the Nation PD’s request for reconsideration. The

Nation PD requested that the FBI provide a deadline for reconsideration, and the FBI indicated it 

would act by October 31, 2020. Id. at 933. When that date came and passed, the Nation filed this 

lawsuit on November 3, 2020. Compl., ECF No. 1. 

Just before the FBI was required to answer to the Nation’s complaint, the FBI provided the 

Nation PD with an “addendum” purporting to clarify its decision. AR 963. The FBI stuck by its 

initial decision to deny the Nation PD’s request for an ORI. Id. In the addendum, the FBI 

emphasized the leadership dispute within the Nation and rejected the notion that the BIA’s 

determination of the Halftown Council as the legitimate governing body bound the FBI. Id. at 966–

967. The FBI reiterated that it could “not conclude that any leadership officials presently serve as 

‘tribal justice officials’ representing the Nation because a leadership dispute still exists.” Id. at 

965.3

In its lawsuit, the Nation claims that the FBI’s decision violates the APA because it is both 

“not in accordance with law” and arbitrary and capricious. Am. Compl. ¶ 108–09. The Nation 

argues that the Nation PD meets the requirements for an ORI and that the FBI unlawfully withheld 

its ORI based on irrelevant factors. Id. ¶ 106. The Nation seeks an order vacating the FBI’s denial, 

a declaration that the Nation PD is entitled to an ORI and to access the FBI databases, and an 

injunction requiring the FBI to grant the Nation PD’s application. Id. ¶ 118–20. 

3 The FBI also stated that “leadership for the purposes of executing law enforcement authority” remained unresolved, 

even if leadership for BIA purposes was resolved. AR 965. It reasoned that the CNPD does not have “criminal 

jurisdiction” over Indian country because the February 2020 violence raised “serious examples of federal and state 

jurisdictional problems.” Id. at 968. The FBI also conceded that whether the CNPD was authorized or commissioned

by the BIA and whether the Nation has land in trust do not affect the Nation’s criminal jurisdiction or the legitimacy 

of a tribal police force. Id. 
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Now, the parties cross-move for summary judgment. See Pl.’s Mot.; Defs.’ Mot. The FBI 

replied to the Nation’s motion, Defs.’ Reply, ECF No. 22, and the Nation replied to the FBI’s 

motion, Pl.’s Reply, ECF No. 24. Both motions are ripe for review. 

II. LEGAL STANDARDS

A. Summary Judgment

When a court decides motions for summary judgment in a suit “seeking review of an 

agency’s actions, the standard under Fed. R. Civ. P. 56(a) does not apply.” Beyond Nuclear v. 

Dep’t of Energy, 233 F. Supp. 3d 40, 47 (D.D.C. 2017). Instead, the court must decide as a matter 

of law “whether the agency action is supported by the administrative record and otherwise 

consistent with the APA standard of review.” Coe v. McHugh, 968 F. Supp. 2d 237, 240 

(D.D.C. 2013). In these types of APA cases, summary judgment is favored. Zemeka v. Holder, 

963 F. Supp. 2d 22, 24 (D.D.C. 2013).

B. The Administrative Procedure Act

The APA “sets forth the procedures by which federal agencies are accountable to the public 

and their actions subject to review by the courts” and requires a reviewing court to set aside agency 

action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with 

law.” Dep’t of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891, 1905 (2020) 

(quoting 5 U.S.C. § 706). The APA ensures that agencies engage in “reasoned decisionmaking” 

and that their decisions evince “a rational connection between the facts found and the choice 

made.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). 

“Where the agency has failed to provide a reasoned explanation, or where the record belies the 

agency’s conclusion, [the court] must undo its action.” AT&T Co. v. FCC, 974 F.2d 1351, 1354 

(D.C. Cir. 1992). 
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Courts are empowered to set aside agency action that is arbitrary and capricious. 

5 U.S.C. § 706(2). This “narrow standard of review” asks courts to “assess only whether the 

decision was based on a consideration of the relevant factors and whether there has been a clear 

error of judgment.” Cigar Ass’n of Am. v. United States Food & Drug Admin., 5 F.4th 68, 74 (D.C. 

Cir. 2021). In general, an agency decision will be considered arbitrary and capricious if:

the agency has [1] relied on factors which Congress has not intended 

it to consider, [2] entirely failed to consider an important aspect of 

the problem, [3] offered an explanation for its decision that runs 

counter to the evidence before the agency, or [4] is so implausible 

that it could not be ascribed to a difference in view or the product of 

agency expertise. 

State Farm, 463 U.S. at 43. Simply put, “the agency must explain why it decided to act as it did,” 

Butte Cnty. v. Hogen, 613 F.3d 190, 194 (D.C. Cir. 2010), and the reason for the agency’s decision 

must be “both rational and consistent with the authority delegated to it by Congress,” Xcel Energy 

Servs. Inc. v. FERC, 815 F.3d 947, 952 (D.C. Cir. 2016).

The APA also authorizes courts to “compel agency action unlawfully withheld or 

unreasonably delayed.” 5 U.S.C. § 706(1). Standing opposite to a court’s authority to set aside an 

agency action, § 706(1) provides relief for an agency’s failure to act. Ctr. for Biological Diversity 

v. Zinke, 260 F. Supp. 3d 11, 19 (D.D.C. 2017). “[A] claim under § 706(1) can proceed only where 

a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take.”

Norton v. S. Utah Wilderness Alliance (SUWA), 542 U.S. 55, 65 (2004) (emphasis in original). 

Section 706(1) empowers a court to compel an agency to perform only “ministerial or nondiscretionary act[s].” Id. at 64 (quotation omitted). 

III. DISCUSSION

At issue here is the FBI’s determination that the Nation PD failed to prove (1) that it was a 

tribal justice agency serving an Indian tribe and (2) that it held criminal jurisdiction over tribal 
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land. The FBI argues that denying the Nation PD’s application was a “rational exercise of the 

FBI’s discretion.” Defs.’ Mot. 16. The Nation first argues that because the FBI violated a 

mandatory duty, the Nation is entitled to an injunction under § 706(1). Pl.’s Mot. 24. On this 

argument, the Court disagrees. The FBI did not fail to perform a ministerial duty that requires no 

exercise of judgment, so the Court cannot grant an injunction under § 706(1). In the alternate, the 

Nation argues that the FBI’s decision was not in accordance with law and arbitrary and capricious,

and asks the Court to set it aside pursuant to § 706(2). Id. at 35. The Court agrees that the FBI’s 

decision was arbitrary and capricious because it relied on a “slew of considerations” that are 

irrelevant under the TLOA. Id. at 35.

A. The FBI Could Use Its Judgment To Determine Whether The Nation PD Met The 

Three TLOA Criteria And Injunctive Relief Is Unwarranted Here 

The Nation first argues that the FBI violated a mandatory duty by unlawfully withholding 

the ORI and seeks (1) a declaration that the Nation PD is entitled to an ORI and (2) an injunction 

requiring the FBI to grant the Nation PD access to the NCIC. Id. ¶¶ 108, 117, 119–20. The APA 

empowers a court to “compel agency action unlawfully withheld or unreasonably delayed.” 

5 U.S.C. § 706(1). But a court can grant an injunction under § 706(1) only if an agency failed to 

perform a required “ministerial or nondiscretionary” duty—a “discrete agency action that it is 

required to take.” SUWA, 542 U.S. at 63. The action must be one “about which an official had no 

discretion whatever.” In re Long-Distance Tel. Serv. Fed. Excise Tax Refund Litig., 751 F.3d 629, 

634 (D.C. Cir. 2014) (quoting SUWA, 542 U.S. at 63). Here, the Nation has not satisfied § 706(1)’s 

“exacting requirements.” Id. 

Despite the FBI’s references to its “discretion in controlling access to highly confidential 

and sensitive information,” Defs.’ Mot. 14, all parties agree that three requirements trigger the 
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FBI’s duty to grant access to the NCIC. Defs.’ Mot. 4; Pl.’s Mot. 26.4 To gain access, (1) the entity 

must be a “tribal justice official serving an Indian tribe,” (2) the Indian nation must have “Indian 

country”, and (3) the Indian nation needs “criminal jurisdiction” over its Indian country. 34 U.S.C. 

§ 41107(3). If these three criteria are met, the FBI “shall” provide access to the NCIC and lacks 

discretion to deny access based on other concerns. 34 U.S.C. § 41107(1), (3); see Kingdomware 

Techs., Inc. v. United States, 579 U.S. 162, 171 (2016) (“Congress’ use of the word ‘shall’ 

demonstrates that [the statute] mandates [the action].”). The question is what discretion, if any, 

Congress gave the FBI in determining whether these three requirements are met. 

The Nation argues that the FBI has no discretion when making its ORI determination and 

the required action—granting the ORI—is purely ministerial. Pl.’s Mot 26. But the Nation is short 

of support for its argument that the FBI has “no discretion whatsoever” to determine whether the 

TLOA’s three requirements are met. In re Long-Distance Tel. Serv. Fed. Excise Tax Refund Litig., 

751 F.3d at 634. What’s more, the FBI’s duty here differs from the purely ministerial, nondiscretionary acts that the Supreme Court has recognized in the past. See, e.g., United States ex 

rel. Dunlap v. Black, 128 U.S. 40, 46 (1888). The Supreme Court has emphasized that a purely 

ministerial, non-discretionary act is one which requires no “exercise of judgment or discretion.”

Id. But in performing its duty, the FBI must judge, for example, whether an entity is a “tribal 

justice official serving an Indian tribe.” 34 U.S.C. § 41107(3) (emphasis added). 

In determining that the FBI’s action at issue here is not a ministerial or non-discretionary 

act that would allow this Court to grant relief under § 706(1), it is helpful to consider what the FBI 

did not do. The FBI did not determine that the Nation PD met the three TLOA requirements, then 

4 Because the TLOA implicates multiple agencies’ responsibilities, the FBI is not entitled to any deference under 

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). See Martin v. Occupational 

Safety & Health Review Comm’n, 499 U.S. 144, 149 (1991). 
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refuse to grant its ORI application anyway—that would amount to unlawful withholding of a nondiscretionary act. The FBI did not refuse to consider the ORI application at all. Instead, the FBI 

determined that the three requirements triggering a mandatory duty were not met—so it did not 

perform that duty. While the FBI exceeded the bounds set by Congress in making that 

determination, as discussed below, the Court will not go so far as to say that the FBI has no

judgment or discretion in determining whether the three TLOA criteria are met. Accordingly, this 

Court cannot grant the Nation relief under § 706(1). 

B. The FBI’s Determination Was Arbitrary and Capricious

The Nation also challenges the FBI’s determination under § 706(2) and argues that it was 

both not in accordance with law and arbitrary and capricious. Pl.’s Mot. 35. When reviewing 

agency action under the arbitrary and capricious standard, a court’s review is narrow—it must not 

substitute its own judgment for that of the agency by second-guessing determinations or by finding 

an appropriate basis for an agency decision that the agency did not provide. State Farm, 463 U.S. 

at 42–43. A court merely looks for a rational decision that is consistent with Congress’s delegation 

of authority. Xcel Energy Servs., 815 F.3d at 952. Of particular relevance here, an agency decision 

is inconsistent with Congress’s delegation of authority—and thus arbitrary and capricious—when 

“the agency has relied on factors which Congress has not intended it to consider.” State Farm, 463 

U.S. at 43. Here, the FBI’s determination relies heavily on factors that Congress did not intend it 

consider. Even if those considerations could influence whether the Nation PD met the TLOA’s 

three criteria, the FBI fails to rationally connect its reasoning to the statutory criteria. Because the 

FBI went far afield from the strict instructions of Congress, its decision was arbitrary and 

capricious.
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Congress instructed the FBI to evaluate three factors: (1) whether the Nation PD were tribal 

justice officials; (2) whether the Nation PD served an Indian tribe; and (3) whether the Nation had 

criminal jurisdiction over its Indian country. See 34 U.S.C. § 41107(3). Instead, over the course of 

two letters, the FBI explained that it considered:

• the fact that the Nation “has no federal trust lands under the 

jurisdiction of the United States,” AR 921, despite recognizing that 

the “BIA states that the Cayuga Nation reservation still exists even 

though there are no federal trust lands,” id., and that a lack of trust 

lands does not affect whether the Nation has criminal jurisdiction, 

id. at 950; 

• the fact that the “BIA provides no funding to the Nation PD,” has 

“no relationship with the Nation PD,” and has “not commissioned 

the Nation PD with federal law enforcement authority,” id. at 921;

• the fact that the Nation PD does not “represent[] the interests of 

Cayuga Nation, as a whole,” id. at 945 (emphasis added);

• the Nation PD’s “unwillingness . . . to use restraint,” id. at 950;

• the fact that the BIA exercised its discretion to deny a request by the 

Nation to move 114 acres of land into trust, id.;

• concerns of “serious . . . federal and state jurisdictional problems 

and conflicts of land use which impacted public safety and 

undermined the hope that such conflicts as may arise with local or 

State government in the future could be successfully managed,” id.

at 950;

• the possibility of inflaming “tension between the Nation and its 

neighbors,” id.;

• the concern “that the Nation’s unilateral demolition of property, 

detention of Tribe members, and subsequent violence were serious 

matters that weakened the trust that the Nation’s government can 

operate at this time in a harmonious nature with the other 

governments and law enforcement officers that share the same 

geography,” id.; 

• “general poor relations and lack of intergovernmental agreements 

between the Nation and its neighbors,” id.;
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• worries regarding “the civil rights of Individual Tribe members and 

the absence of Tribal laws protecting its members from arbitrary 

exercise of government authority, [and] the apparent unwillingness 

[of the Nation PD] to use restraint,” which the BIA recognized in a

(discretionary) land-in-trust determination, id.; and

• the February 2020 Nation PD actions, which the FBI characterized 

as “violen[t]” and raised concerns about whether the leadership 

officials serve as “tribal justice officials,” id. at 947.

5

AR 920–21; 945–51. Relying on these factors, the FBI denied the Nation PD’s application. 

Congress gave the FBI strict instructions, clear criteria, and a duty. Instead of following 

those instructions, the FBI made its determination based on the surfeit of extraneous factors above.

Congress did not mandate that the FBI shall grant an ORI only to a tribal law enforcement agency 

that operates harmoniously with other governments in the area. It did not instruct the FBI to grant 

an ORI only to tribes that have FBI-approved “Tribal laws protecting its members.” AR 950. It 

did not grant the FBI the authority to deny a tribal law enforcement agency’s application based on 

an “unwillingness” to use restraint. Id. Still, the FBI denied the application based on the abovementioned factors—factors manifestly different from the narrow criteria Congress provided. 

The FBI argues that the Nation can point to no limits on what “Congress permitted the FBI 

to consider in making the determination of whether the CNPD officers are ‘tribal justice official[s] 

serving an Indian tribe with criminal jurisdiction over Indian country.’” Defs.’ Reply 23 (quoting 

34 U.S.C. § 41107(3)). While that may be true, at its broadest Congress mandated the FBI evaluate 

only the considerations relevant to whether the three TLOA criteria are met. In other words, if the 

5 The Nation argues that the FBI’s February 2021 addendum is a “post-hoc rationalization” not properly before the 

Court. Pl.’s Mot. 35–36. The FBI vehemently denies this, arguing that the Nation specifically requested a 

reconsideration from the FBI and that the February 2021 addendum only elaborates on reasons included in the original 

denial. Defs.’ Reply 25–26. Because the Court finds that the FBI’s determination was arbitrary and capricious even 

with the February 2021 addendum, the Court need not reach whether the February 2021 addendum is an improper 

post-hoc rationalization. But the Court will note that both the July 2020 decision and the February 2021 addendum 

identify that there are disputes about the legitimate governing body of the Nation—that reasoning does not appear for 

the first time in the February 2021 addendum. AR 882–83, 949. 
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FBI could be able to consider whether there are “Tribal laws protecting its members” from

overreach, it could only do so to the extent that that consideration helped determine whether one 

of the three statutory criteria are met. But the FBI was instead considering these factors “in 

determining whether that agency should have access to highly sensitive criminal databases.” Defs.’

Reply 22 (emphasis added). That consideration is beyond Congress’s mandate.

Even if the factors cited above were somehow appropriately considered, the FBI’s decision 

letters failed to rationally explain how these factors relate to the three TLOA requirements. This 

Court cannot “supply a reasoned basis for the [FBI’s] action that the [FBI] itself has not given.” 

State Farm, 463 U.S. at 43. While the FBI does not need to provide a perfectly clear decision to 

survive arbitrary and capricious review, it does need to provide a discernable path. Id. Here, the 

FBI did not even attempt to link factors like “poor relations” with governmental neighbors or the 

unwillingness of the Nation PD to use restraint to its analysis of whether the Nation PD was 

composed of “tribal justice officials serving an Indian tribe with jurisdiction over Indian country.” 

34 U.S.C. § 41107(3). Absent a discernable roadmap, this Court has no choice but to find that the 

FBI considered factors Congress did not intend it to consider. 

In short, whether the FBI considered extraneous factors Congress did not intend it to 

consider or whether the FBI failed to connect its considerations to the three TLOA criteria in any 

“reasonably . . . discern[able]” way, State Farm, 463 U.S. at 43, the FBI’s determination was 

arbitrary and capricious. This Court will set aside the FBI’s determination as required by statute. 

5 U.S.C. § 706(2). In so deciding, the Court will not reach the issue of whether the FBI is bound 

by the BIA’s determination regarding Halftown Council’s legitimacy. Additionally, because this 

Court finds the FBI’s decision arbitrary and capricious, the Court will not address whether the 

FBI’s decision was not in accordance with law.