Margaret Miranda et al v. Sally Jewell et al

Filing 37

MINUTES (IN CHAMBERS) ORDER DENYING Plaintiffs' Motion for Summary Judgment and GRANTING Defendants' Cross-motion for Summary Judgment by Judge Virginia A. Phillips re: 25 Motion for Summary Judgment ; 20 Motion for Summary Judgment. (See document for specifics) (mrgo)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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11 MARGARET MIRANDA et al., )
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12
Plaintiffs, )
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13
v.
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14 SALLY JEWELL et al.,
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Defendants. )
________________________ )
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Case No. EDCV 14-00312-VAP
(DTBx)
ORDER: DENYING Plaintiffs'
Motion for Summary Judgment
and GRANTING Defendants'
Cross-motion for Summary
Judgment
[Motion filed on August 28,
2014]

18
Margaret Miranda and nine of her relatives have asked
19
the Court to review the federal Bureau of Indian Affairs'
20
endorsement of the Santa Ynez Band of Chumash Indians'
21
decision to deny them membership in the tribe.

The

22
parties filed cross-motions for summary judgment (Doc.
23
Nos. 20, 25), and after considering the papers timely
24
filed, the administrative record ("Record"), and the
25
parties' arguments at the January 12, 2014 hearing, the
26
Court DENIES Plaintiffs' motion for summary judgment and
27
GRANTS the government's cross-motion for summary
28
judgment.

1

I.

BACKGROUND

2 A.

The Complaint's Allegations

3

The Santa Ynez Band of Chumash Indians ("SYB" or

4 "Tribe") requires prospective Tribe members to prove
5 their consanguinity before admission to the Tribe.
6 generally Compl. ¶ 3.)

(See

If an applicant's "blood degree"

7 exceeds one quarter SYB, roughly meaning at least one of
8 their grandparents is full-blood SYB, the Tribe shall
9 approve their membership.

(Id.)

Plaintiffs have been

10 seeking –- for over a decade –- recognition as SYB
11 members.1
12

Plaintiffs originally applied for SYB membership in

13 April 2001.

(Compl. ¶ 10.)

Over the next six months

14 they wrote letters to the Tribe and the federal Bureau of
15 Indian Affairs ("BIA") in an effort to receive a response
16 to their applications.

(Compl. ¶¶ 11–15.)

The BIA

17 explained in a letter dated October 4, 2001 that the SYB
18 "disapproved [the] applications on July 24, 2001 for
19 insufficient blood degree."

(Compl. ¶ 17.)

In August

20 2002 the BIA responded to further correspondence from
21 Plaintiffs, writing "[BIA] had completed reviewing all of
22 the enrollment applications filed and that BIA Riverside
23 agreed with the [Tribe's] decision that [Plaintiffs']
24 family did not meet the criteria for membership in the
25
1

Some Plaintiffs are already SYB members and press a
slightly different claim -- they want the Tribe to
27 increase their recorded blood degrees. Both claims
depend on the same questions of law, so the Court treats
28 them together.
26

2

1 SYB."

(Compl. ¶ 23.)

After receiving notice from the

2 Tribe of its decision to deny the applications (see
3 Compl. ¶¶ 27, 28), Plaintiffs retained an attorney who
4 attempted in December 2002 to preserve their rights to
5 appeal the decision.
6

(Compl. ¶ 30.)

In December 2012 Plaintiffs filed a federal lawsuit

7 "similar to the present action," which was dismissed for
8 failure to exhaust administrative remedies.
9 ¶¶ 34, 35.)

Plaintiffs went back to BIA in September

10 2013, formally appealing the Tribe's denial.
11 ¶ 36.)

(Compl.

(Compl.

In November 2013 BIA reviewed the Tribe's

12 decision on the merits, and agreed with its outcome and
13 reasoning.
14

(Compl. ¶ 37.)

Plaintiffs brought this case under the Administrative

15 Procedure Act, 5 U.S.C. § 701 et seq., in February 2014,
16 asking the Court for a declaration that the Bureau's
17 recent denial of their appeals was arbitrary and
18 capricious because BIA allegedly applied an incorrect
19 legal standard and improperly considered certain
20 evidence.2

(Compl. ¶ 63.)

21
22
23
24
25

2

Defendants in this action include Sally Jewell (in
her official capacity as Secretary of the Interior), and
26
the United States Department of the Interior. BIA is a
27 subagency within the Department of the Interior. This
Order refers to all Defendants collectively as "BIA" or
28 "Bureau."
3

1 B.

Plaintiffs

2

Plaintiffs all descend from Rosie Pace, who was born

3 in 1906.

Plaintiffs allege Rosie Pace was full-blood SYB

4 because she is listed as such on the Bureau's 1940 census
5 roll of the SYB ("1940 Census").3
6

(Compl. ¶ 6.)

Lead Plaintiff Margaret Miranda is Rosie Pace's

7 daughter.

(Compl. ¶ 42.)

Margaret Miranda married

8 Joseph Miranda (who himself is deceased but was half9 blood SYB), and gave birth to at least four children,
10 three of whom are Plaintiffs here: Clara Miranda, Rosanna
11 Delphina Miranda, Cyril Miranda (also now deceased), and
12 Cindy Griego.

(Compl. ¶¶ 43–45.)

Six of Rosie Pace's

13 great-grandchildren seek relief as well.

Rosanna

14 Delphina Miranda has at least five children: Helen
15 Herrera, Rose Anna Herrera, Monica Herrera, Micki
16 Herrera, and Inez Alvarez; and Belinda Miranda is Cyril
17 Miranda's daughter.

(See Compl. ¶¶ 46–51.)

18
19 C.

The Motions for Summary Judgment

20

As will be explained in greater detail below, SYB law

21 controls Tribal membership.

The Tribe approves or denies

22 a membership application, and that decision may be
23
24

3

The Record lists Rosie Pace by a variety of names,
25 all containing some combination of Rosa, Rosie, Pina, and
Pace. Rosie Pace's mother was a full-blood SYB named
26 Inez Pena. The identity of Pace's father, however, is
less clear, which muddies the inquiry into whether she is
27 in fact full-blood SYB, and ultimately affect swhether
Plaintiffs meet the Tribal membership criteria (although
28 that is not the issue before the Court).
4

1 appealed to BIA. Federal regulations guide BIA's review
2 process.
3

See 25 C.F.R. Part 62.

SYB law derives from at least two sources, the

4 Tribe's Articles of Organization ("Articles") and tribal
5 ordinances.

Article III governs enrollment and refers to

6 the 1940 Census, but is drafted in broad terms.

SYB

7 Ordinance 2 also deals with tribal enrollment, and
8 operates at a level of greater specificity than Article
9 III.
10

The 1940 Census lists Rosie Pace (recall Pace is the

11 matriarch of Plaintiffs' family) as "f"4 in the column
12 labelled "Degree of Blood" (R. 156), but the Tribe's 1965
13 membership roll records her "Santa Ynez Indian Blood" as
14 only "1/2."
15

(R. 144.)

Plaintiffs' motion for summary judgment contends the

16 Tribe and the BIA may consult only the 1940 Census to
17 determine the blood degree of a prospective member
18 because Article III refers only to that document. (Pls.'
19 Mot. for Summ. J. at 6.)

In Plaintiffs' view, BIA acted

20 unlawfully by upholding the Tribe's denial because both
21 the Tribe and the BIA considered evidence other than the
22 1940 Census to determine Plaintiffs' blood degrees.
23 (Id.)

The BIA's cross-motion for summary judgment, in

24 contrast, argues the Tribe and the BIA properly took
25
26

4

The parties do not dispute that "f" refers to a
person with full "Degree of Blood." The Court assumes
27
this is the correct interpretation of that notation as it
28 relates to the 1940 Census.
5

1 account of evidence beyond the 1940 Census to determine
2 Plaintiffs' eligibility.
3 at 13.)

(Defs.' Cross-mot. for Summ. J.

According to the Bureau, a holistic reading of

4 the Tribe's Articles and ordinances authorizes such a
5 result.
6

(Id. at 10–12.)

The BIA did not act arbitrarily or capriciously when

7 it rejected Plaintiffs' appeals from SYB's denials of
8 their membership applications, because the SYB Articles
9 do not limit (to the 1940 Census) the evidence the Tribe
10 or BIA may permissibly consider when making membership
11 decisions.
12
13
14

II.

LEGAL STANDARD

A court shall grant a motion for summary judgment

15 when there is no genuine dispute as to any material fact
16 and the moving party is entitled to judgment as a matter
17 of law.

Fed. R. Civ. P. 56(a); Anderson v. Liberty

18 Lobby, Inc., 477 U.S. 242, 247–48 (1986).

The moving

19 party must show that "under the governing law, there can
20 be but one reasonable conclusion as to the verdict."
21 Anderson, 477 U.S. at 250.
22

Generally, the burden is on the moving party to

23 demonstrate that it is entitled to summary judgment.
24 Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998)
25 (citing Anderson, 477 U.S. at 256-57); Retail Clerks
26 Union Local 648 v. Hub Pharmacy, Inc., 707 F.2d 1030,
27 1033 (9th Cir. 1983).

The moving party bears the initial

28
6

1 burden of identifying the elements of the claim or
2 defense and evidence that it believes demonstrates the
3 absence of an issue of material fact.

Celotex Corp. v.

4 Catrett, 477 U.S. 317, 323 (1986).
5

The non-moving party must make an affirmative showing

6 on all matters placed in issue by the motion as to which
7 it has the burden of proof at trial.

Celotex, 477 U.S.

8 at 322; Anderson, 477 U.S. at 252; see also Schwarzer,
9 Tashima & Wagstaffe, Cal. Prac. Guide: Fed. Civ. Pro.
10 Before Trial § 14:144 (2014).
11

A genuine issue of material fact will exist "if the

12 evidence is such that a reasonable jury could return a
13 verdict for the non-moving party."

Anderson, 477 U.S. at

14 248; Scott v. Harris, 550 U.S. 372, 380 (2007).

In

15 ruling on a motion for summary judgment, a court
16 construes the evidence in the light most favorable to the
17 non-moving party.

Scott, 550 U.S. at 380 (2007); Barlow

18 v. Ground, 943 F.2d 1132, 1135 (9th Cir. 1991); T.W.
19 Elec. Serv. Inc. v. Pac. Elec. Contractors Ass'n, 809
20 F.2d 626, 630-31 (9th Cir. 1987).
21
22
23

III.

FACTS

No material facts are in dispute in this case;

24 rather, the outcome turns on whether the BIA correctly
25 interpreted and applied the Tribe's laws.
26 taken from the Record.
27
28
7

All facts are

1 A.

The Tribe's Membership Laws

2

Two sources of SYB tribal law bear on Plaintiffs'

3 claims to membership, the Tribe's Articles and SYB
4 ordinances.5
5

1.

6

Article III of the SYB Articles governs membership in

SYB Articles of Organization

7 the Tribe, and provides:
8

Section 1:

9

A.

Membership in the Band shall consist of:

Those living persons whose names appear on

10

the January 1, 1940 Census Roll of the [SYB],

11

. . .

12

B.

13

described in Section 1A regardless of whether

14

those persons listed on the census roll are

15

living or deceased, provided that such

16

descendants have one-fourth (1/4) or more degree

17

of Indian blood of the Band.

Living descendants of those persons

18
19
20
21
22
23
24
25
26
27
28

5

The SYB Articles of Organization (promulgated in
1963 and approved by BIA in 1964) provide a foundational
source of tribal law, and are analogous to a
constitution. See Cohen's Handbook of Federal Indian Law
§ 4.05[3] (2012). SYB ordinances are more specific and
fill the gaps left by the general language of the SYB
Articles –- more like a statute or regulation. See id.
§ 4.05[5]. The difference between the two, however, may
be only a formality because the requirements for amending
the Articles and passing an ordinance appear materially
similar. Compare Article VI Sections 3–4 (ordinance
enacted by majority vote of General Council where at
least 51% of eligible voters cast ballots), with Article
IX (Articles may be amended by majority vote of General
Council and ratified "in the same manner as" the
Articles, which according to Article II of the SYB bylaws
means majority vote at a special election called by the
Secretary of the Interior and approved by the Secretary)
(See R. 205–206, 208, 210.)
8

1

Section 2:

The Business Council, as provided for in

2

Article IV, shall keep the membership roll

3

current at all times . . . by adding the names

4

of persons eligible under Article III, Section

5

1B.

6 (R. 201.)
7

Article VIII lists the General Council's6 "powers and

8 responsibilities."

(R. 207.)

Article VIII, Section 1.B

9 states the General Council shall have the power to
10 "establish rules or procedures for the conduct of its
11 affairs," including the authority to enact ordinances or
12 resolutions to "control future membership, loss of
13 membership and the adoption of members."

(R. 207–208.)

14

2.

15

SYB Ordinance 2 (adopted in 1965) establishes

SYB Ordinance 2

16 "regulations and procedures governing the enrollment into
17 the Band and to maintain the roll on a current basis."
18 (R. 215.)

It further explains the official membership

19 roll should be prepared "in accordance with the Articles
20 of Organization."
21

(R. 215.)

Section 1 of Ordinance 2 defines relevant terms,

22 including:
23

(F) "January 1, 1940 Census roll of the Santa Ynez

24

Band," as used in Article III, Section 1.A, of the

25
26
6

The General Council is the Tribe's governing body,
as provided by Article VI, and comprises "all adult
28 members twenty-one years of age or older." (R. 202.)
27

9

1

Articles of Organization, shall be the census roll of

2

the Band prepared by [BIA] as of January 1, 1940;

3

(G) "Indian Blood of the Band" as used in Article

4

III, Section 1.B., . . . means the total percentage

5

of Indian blood derived from an ancestor or ancestors

6

who were listed on the Santa Inez 1940 Census Roll.

7 (R. 216.)
8

Section 3.A of Ordinance 2 explains "[p]ersons who

9 are determined eligible for membership in accordance with
10 the provisions of Article III, Section 1.A, and B," of
11 the SYB Articles "shall have their names placed on the
12 initial membership roll."
13

(R. 216.)

Section 6 of Ordinance 2 delineates the Enrollment

14 Committee's7 process for deciding whether to approve or
15 deny an application for membership, and it states: "[t]he
16 Enrollment Committee shall review and arrive at a
17 perliminary [sic] decision as to the eligibility of the
18 applicant based upon tribal records, information
19 presented in the application or other sources of
20 information."

(R. 218.)

The Enrollment Committee then

21 must "refer the application" to BIA for a "review of the
22 Bureau records for any additional data which would either
23
24

7

The Enrollment Committee is a five-member group
25 appointed by the Business Council, which in turn is a
five-member group of elected SYB members. (R. 202, 216.)
26 Under Article IV, the General Council delegates manifold
duties to the Business Council, such as "effectuat[ing]
27 all tribal approved ordinances," dealing with the federal
government, retaining legal counsel on SYB's behalf, and
28 calling General Council meetings. (R. 202, 203.)
10

1 substantiate or refute the preliminary decision of the
2 Committee."

(R. 218.)

BIA must respond to the

3 Enrollment Committee via written statement with
4 "information found in Bureau records relative to the
5 eligibility of the applicant," and after the Enrollment
6 Committee receives BIA's statement it shall "on the basis
7 of the evidence thus accumulated, approve or disapprove
8 the application."
9

(R. 218.)

The Enrollment Committee must advise a "person

10 disapproved for enrollment . . . in writing of the
11 reasons for the action," and that the decision "may be
12 appealed" to the regional "Director"8 of the BIA (but
13 such an appeal must be made "within thirty (30) days
14 following receipt of a rejection notice"), and may be
15 further appealed, if necessary, to the "Commissioner" of
16 the BIA, according to Ordinance 2, Section 7.

(R. 218.)

17 Ordinance 2 does not specify the criteria by which BIA
18 ought to evaluate appeals of disapprovals of membership.
19

Ordinance 2's Section 10 instructs the Business

20 Council "to keep the membership roll current by
21 . . . [m]aking corrections to the roll, such as
22 correcting dates of birth, degree of Indian blood, family
23
24
25

8

Ordinance 2 defines "Director" as the "Area
Director, Bureau of Indian Affairs, Sacramento Area
26
Office," and "Commissioner" as the "Commissioner of
27 Indian Affairs." (R. 215.) Both definitions correspond
with the meanings given to those terms by the Code of
28 Federal Regulations. See 25 C.F.R. § 62.1.
11

1 relationship, etc., provided such corrections are
2 supported by satisfactory evidence."

(R. 219, 220.)

3
4 B.

Other Relevant Tribal Documents

5

SYB Article III instructs the initial membership roll

6 for the Tribe to consist of the individuals listed on the
7 1940 Census (which was prepared by the BIA).

The 1940

8 Census counts Rosie Pace among the Tribe's members, and
9 lists her "Degree of Blood" as "f."
10

(R. 156.)

In July 1965, two years after the Tribe enacted its

11 Articles, Rosie Pace applied for membership in the Tribe
12 in accordance with SYB Ordinance 3.

(R. 164.)

Rosie

13 Pace wrote on her application that her father is Mike
14 Valencia, but left blank the space available to indicate
15 Valencia's "Total Santa Ynez Blood." (R. 164.)

On the

16 line immediately below the Valencia entry, Pace marked
17 her mother's total SYB blood as "F."

(Id.)

The

18 application received preliminary approval on July 18,
19 1965, and bears a notation stating "Blood degree is wrong
20 –- should be 1/2," and was finally approved on September
21 28, 1965.
22

The BIA approved the Tribe's 1965 initial "Official

23 Membership Roll" in November 1970 (R. 136); the 1965 roll
24 records Rosie Pace's "Santa Ynez Indian Blood" as "1/2."
25 (R. 144.)
26
27
28
12

1 C.

BIA's Denial of Plaintiffs' Appeals

2

The Bureau denied Plaintiffs' appeals in a four-page

3 letter to their lawyer dated November 21, 2013.9

(R. 1.)

4 The denial letter begins by quoting Article III's two
5 sections (listing membership criteria), and then recites
6 SYB Ordinance 2's definition of "Indian Blood of the
7 Band."

(R. 2.)

The BIA next agrees that Plaintiffs

8 descend from Rosie Pace, and that Pace "appeared on the
9 [1940 Census], which lists her degree of Indian blood as
10 'f' (4/4)."

(R. 2.)

The Bureau's denial letter then

11 advised: "[t]he appeals before this office stem from the
12 preparation and approval of the 1965 Base Roll of the
13 Santa Ynez Reservation, wherein it was determined by the
14 Santa Ynez Enrollment Committee, and approved by the
15 Sacramento Area Director, that Rosa Pena (Valencia) Pace,
16 was 1/2 Santa Ynez Indian Blood," and thus Plaintiffs'
17 claims to membership or increased blood quanta fail.

(R.

18 2.)
19

The BIA canvassed the Record to determine the

20 identity of Rosie Pace's father, and found (in agreement
21 with the Tribe's enrollment committee), that her father
22 was Michael Valencia, who was non-Indian.

(R. 2.)

The

23 evidence weighed by the BIA includes: (1) a 1928 Roll of
24
25

9

The Record contains a great deal of additional
correspondence among Plaintiffs, tribal officials, and
26
BIA officials. The Court focuses on the final denial
27 letter to Plaintiffs from the Bureau because that
document constitutes the final agency action for which
28 Plaintiffs' seek APA review in this lawsuit.
13

1 California Indians (contains no information); (2) the
2 BIA-prepared 1940 Census (contains no information); (3)
3 Rosie Pace's 1965 SYB enrollment application (identifies
4 Michael Valencia as Pace's father); (4) Rosie Pace's
5 application for the 1968 California Judgment Fund Roll of
6 California Indians, completed and signed by Pace
7 (identifies Michael Valencia as Pace's father); (5)
8 Pace's 1982 baptismal certificate (identifies Michael
9 Valencia as Pace's father); (6) Pace's 1993 baptismal
10 certificate (contains no information); (7) a second 1993
11 baptismal certificate (identifies Michael Valencia as
12 Pace's father); (8) a 1996 Pace affidavit (identifies
13 Guillermo Cordona as Pace's father); (9) 1999 Delayed
14 Registration of Birth for Rosie Amelia Pina-Valencia,
15 issued by the California Department of Health and Human
16 Services (identifies Guillermo Cordona as Pace's father,
17 relying on 1993 baptismal certificate that bore no
18 paternal identifier, 1940 Census, and a Social Security
19 document not in the Record).
20

(R. 3.)

The Bureau's denial letter then explains why the BIA

21 does not credit evidence provided by Pace or her
22 descendants that purports to show Pace's father was an
23 Indian (SYB or otherwise), mainly stating "[t]here have
24 been no documents submitted by people with an obvious or
25 inferable knowledge of Rosa Pena (Valencia) Pace's
26 parentage."

(R. 3.)

The BIA also justifies its use of

27 evidence extrinsic to the 1940 Census: "there is no
28
14

1 requirement in the [SYB Articles or Ordinance 2]
2 . . . for the Enrollment Committee to utilize the degree
3 of Indian blood listed for any individual on any document
4 prepared by the United States for the purpose of
5 determining an individual's degree of Indian blood for
6 enrollment."
7

(R. 3.)

The BIA's letter concludes by noting "BIA gives

8 deference to tribes' reasonable interpretations of their
9 own laws,"10 and states SYB "made a reasonable
10 interpretation of its own laws in determining the degree
11 of Indian blood for Rosa Pena (Valencia) Pace."

(R. 4.)

12
13

IV.

DISCUSSION

14 A.

Review of BIA Action Under the Administrative

15

Procedure Act

16

Chapter 7 of the Administrative Procedure Act

17 ("APA"), 5 U.S.C. §§ 701–706, provides a limited waiver
18 of sovereign immunity to litigants seeking review of
19 final federal agency action.

The APA requires a

20 reviewing court to "hold unlawful and set aside agency
21 action . . . found to be –- (A) arbitrary, capricious, an
22 abuse of discretion, or otherwise not in accordance with
23 law."

5 U.S.C. § 706(2)(A); Citizens to Preserve Overton

24
25

10

The BIA cites Cahto Tribe, 715 F.3d at 1231, to
support its argument for deference to the Tribe's
26
decision. That proposition actually occurs at 715 F.3d
27 at 1230 n.9 ("The agency concedes that the BIA gives
deference to tribes' reasonable interpretation of their
28 own laws.").
15

1 Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971).

Section

2 706(2)(A)'s standard of review is "highly deferential."
3 Nw. Ecosystem Alliance v. U.S. Fish & Wildlife Serv., 475
4 F.3d 1136, 1140 (9th Cir. 2007).

"Agency action is

5 presumed to be valid and must be upheld if a reasonable
6 basis exists for the agency decision."
7 697 F.3d 767, 772 (9th Cir. 2012).

Peck v. Thomas,

An agency need only

8 "consider[ ] the relevant factors and articulate[ ] a
9 rational connection between the facts found and the
10 choices made."

Ranchers Cattlemen Action Legal Fund

11 United Stockgrowers of Am. v. U.S. Dept. of Agric., 415
12 F.3d 1078, 1093 (9th Cir. 2005).

An agency must support

13 its action based only on the administrative record, and
14 may not substitute "[p]ost hoc explanations . . . by
15 appellate counsel . . . for the agency's own articulation
16 of the basis for its decision."

Arrington v. Daniels,

17 516 F.3d 1106, 1113–14 (9th Cir. 2008) (citing Motor
18 Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins. Co., 463
19 U.S. 29, 50 (1983); Fed. Power Comm'n v. Texaco, Inc.,
20 417 U.S. 380, 397 (1974)).
21

Federal courts normally play no part in the

22 adjudication of tribal disputes because "Indian tribes
23 are distinct, independent political communities,
24 retaining their original natural rights in matters of
25 local self-government."

Santa Clara Pueblo v. Martinez,

26 436 U.S. 49, 55 (1978) (internal quotation marks
27 omitted).

This federal hands-off policy extends to

28
16

1 controversies over tribal membership.

Alto v. Black, 738

2 F.3d 1111, 1115 (9th Cir. 2013) ("In view of the
3 importance of tribal membership decisions and as part of
4 the federal policy favoring tribal self-government,
5 matters of tribal enrollment are generally beyond federal
6 judicial scrutiny."); see also Cohen's Handbook of
7 Federal Indian Law § 3.03[3] (2012) ("Courts have
8 consistently recognized that one of an Indian tribe's
9 most basic powers is the authority to determine questions
10 of its own membership.").
11

The APA empowers federal courts indirectly to review

12 tribal enrollment decisions, however, by authorizing
13 scrutiny of BIA action that in turn reviews a tribe's
14 membership determination.

The BIA examines tribal

15 enrollment decisions only when tribal law explicitly
16 permits such review.

Cahto Tribe of Laytonville

17 Rancheria v. Dutschke, 715 F.3d 1225, 1228 (9th Cir.
18 2013); 25 C.F.R. § 62.2(b)(2) (allowing the BIA to
19 consider an appeal only when one "is provided for in the
20 tribal governing document").

According to the Code of

21 Federal Regulations, "Tribal governing document" means
22 "the written organizational statement governing a tribe,
23 band or group of Indians and/or any valid document,
24 enrollment ordinance or resolution enacted thereunder."
25 25 C.F.R. § 62.1.

Courts construe narrowly a tribe's

26 governing document when determining whether it permits an
27 applicant to appeal to BIA.

See Cahto Tribe, 715 F.3d at

28
17

1 1239 (holding BIA lacked authority to review tribe's
2 disenrollment decisions, notwithstanding tribal
3 document's provision of right to appeal adverse
4 enrollment decisions).
5
6 B.

The Bureau's Action was not Arbitrary or Capricious

7

This Court has jurisdiction to review the BIA's

8 endorsement of the Tribe's denial of Plaintiffs'
9 membership applications because SYB Ordinance 2
10 explicitly grants an applicant the right to appeal to the
11 federal government from an adverse decision by the Tribe.
12 (See R. 218–19.)

The BIA's approval of the Tribe's

13 decision amounts to final agency action, see 25 C.F.R.
14 § 62.10 ("[t]he Director shall make a decision on the
15 appeal which shall be final for the Department"), so the
16 Court may review that action under the APA.

5 U.S.C.

17 § 704.
18

1.The BIA's Reasons for Denying Plaintiffs' Appeal

19

The Bureau's denial letter offers two reasons for its

20 support of the Tribe's decision.

First, the BIA surveyed

21 the Record for evidence of Rosie Pace's parentage and
22 found the Record does "not show her father to be of
23 Indian descent."

(R. 3.)

And because "there is no

24 requirement" in the SYB Articles for the Tribe to rely
25 only on a "document prepared by the United States for the
26 purpose of determining an individual's degree of Indian
27 blood for enrollment," SYB law counseled the BIA to
28
18

1 consider evidence apart from the 1940 Census.

(R. 3.)

2 The BIA's letter provides a second and independent ground
3 for upholding the Tribe's decision: the agency deferred
4 to the Tribe's "reasonable interpretation of its own laws
5 in determining the degree of Indian blood" for Rosie
6 Pace.

(R. 4.)

Neither rationale was arbitrary or

7 capricious.
8

2.

The BIA Reasonably Deferred to SYB's Decision

9

The Bureau stated it deferred to the Tribe's

10 decision11 because it was a reasonable one.

The Tribe

11 referenced its internal tribal records (the 1965
12 membership roll) and compared them to the standard in SYB
13 Article III (requiring at least 1/4 SYB blood degree),
14 and found Plaintiffs came up short of that benchmark.
15 The Tribe's Enrollment Committee considered Plaintiffs'
16 evidence and explained in a written response that they
17 did not qualify for membership based on data contained in
18 foundational tribal documents.

In the BIA's view, that

19 finding was reasonable, so it deferred to the Tribe's
20 judgment.

Where such deference is based on a reasonable

21 application of tribal law, as will be explained below,
22 the Bureau's deference hardly indicates caprice.

Rather,

23
24
25

11

The Tribe based its rejection on Plaintiffs'
inability to provide sufficient evidence in support of
26
the required blood quantum. (See, e.g., R. 47.) The
Tribe's Enrollment Committee relied on the blood quanta
27
recorded on the Tribe's 1965 membership roll, and did not
28 limit its inquiry to the 1940 Census. (Id.)
19

1 it furthers the federal policy that encourages tribal
2 self-government.
3

The Bureau's deference accords with the general

4 jurisdictional rule that allocates to tribes near5 absolute primacy to make membership determinations.

See

6 Santa Clara Pueblo, 439 U.S. at 56–57; Cahto Tribe, 715
7 F.3d at 1226.

The BIA's deference to the Tribe gains

8 further support from the Bureau's longstanding policy to
9 respect tribal membership decisions.

See Cahto Tribe,

10 715 F.3d at 1230 n.9 (citing formal BIA adjudication
11 United Keetowah Band of Cherokee Indians in Oklahoma v.
12 Muskokee Area Director, 22 IBIA 75, 80 (June 4, 1992)).
13
14
15

3.

It was Reasonable for the BIA to Consider
Evidence Extrinsic to the 1940 Census

Even if the BIA did not defer to the Tribe's

16 decision, it did not violate SYB law by considering
17 evidence other than the 1940 Census in its review of
18 Plaintiffs' appeals.
19

The rationale underlying both the Tribe's and the

20 BIA's denials of Plaintiffs' applications and appeals –21 that is, tribal eligibility determinations may consider
22 evidence apart from the 1940 Census –- flows from both a
23 strict textual reading of the SYB Articles as well as a
24 broader, more integrated application of the Tribe's laws.
25

Plaintiffs propose a literal interpretation of SYB

26 Article III.

Their theory goes like this: Section 1.A

27 states that the individuals on the 1940 Census embody the
28
20

1 Tribe's foundational membership, Section 1.B admits all
2 descendants of individuals listed on the 1940 Census (as
3 long as the descendant has adequate "Indian Blood of the
4 Band"), therefore an applicant's blood degree must be
5 measured by only the values listed on the 1940 Census.
6 But that conclusion does not follow.
7

Section 1.B requires two distinct conditions be met

8 for membership beyond those persons listed on the 1940
9 Census.

First, the applicant must descend from a "person

10 described in Section 1 A," and second, she must possess
11 1/4 SYB blood.

Article III provides no method for

12 measuring Indian blood of the Band –- the 1940 Census
13 supplies the standard for the first criterion but not the
14 second.

In other words, the 1940 Census starts the

15 membership inquiry but does not end it.

If the Articles

16 drafters wanted the 1940 Census to provide the sole basis
17 for an applicant's blood degree they could have written
18 "Indian blood of the Band, according to the 1940 Census."
19 Instead, they left open the approach to determine blood
20 quanta for membership purposes.

Rather than leading to

21 their desired result, Plaintiffs' theory of strict
22 interpretation points in the opposite direction.
23

A broader view of the Tribe's legal documents, which

24 makes good sense in light of Article III's unmodified
25 "Indian blood of the Band," suggests that SYB Ordinance 2
26 regulates the process for establishing an applicant's
27
28
21

1 blood quantum.12

Enacted roughly contemporaneously with

2 the Tribe's Articles, Ordinance 2 offers a detailed set
3 of procedures to govern "the enrollment of members into
4 the Band and to maintain the roll on a current basis."
5

Ordinance 2's definitions section takes care to

6 define "Indian Blood of the Band," which provides
7 evidence that the same Tribe members who enacted the
8 Articles thought it necessary to give meaning to the
9 potentially opaque term.

The definition it provides does

10 not rely on the listed blood quanta from the 1940 Census,
11 although, to be sure, it does plainly say the relevant
12 SYB blood must derive from an ancestor listed on it.
13 216.)

(R.

Section 6 directs the Enrollment Committee to

14 consider all relevant tribal records or "other sources of
15 information."

(R. 218.)

Taken together, the SYB

16 Articles and ordinances require the Enrollment Committee,
17 and the Bureau, to look at all relevant evidence when
18 making a membership determination.

Any reading of

19 Article III, Section 1.B to the contrary ignores the
20 structure of SYB law and imposes an extra-textual
21 bureaucratic limit on matters that properly fall under
22 the exclusive province of tribal decision-making.
23

Plaintiffs rely on Allery v. Swimmer, 779 F. Supp.

24 126 (D.N.D. 1991), to support their argument that the
25 Tribe or the Bureau may only consider the 1940 Census.
26
12

The BIA's own definition of "Tribal governing
document" counsels such a broad approach. See 25 C.F.R.
28 § 62.1.
27

22

1 In Allery the court reviewed the BIA's "recalculat[ion]"
2 of the tribe's foundational 1940 membership roll for the
3 Turtle Mountain Band of Chippewa Indians, which the
4 Bureau undertook to distribute judgment funds to
5 individual tribe members in accordance with the Act of
6 December 31, 1982, Pub. L. 97–403, 96 Stat. 2022.
7 Allery, 779 F. Supp. at 127.13

The BIA created an

8 original roll for the Turtle Mountain Band in 1940,
9 pursuant to the Act of 1940, Pub. L. 76–520, 54 Stat.
10 219.14

Id.

In 1983 the BIA went back and altered entries

11 on the original 1940 membership roll to make its judgment
12 fund distributions as accurate as possible.

Id.

The

13 court ruled the BIA's alterations impermissible, because
14 the 1982 "Act in no way [gave] the Bureau the authority
15 to re-prepare the [1940] roll."

Id. at 128.

In so

16 holding, the judge also wrote that all blood-degree
17 calculations by the BIA related to keeping the Turtle
18
19

13

The reported decision of the Allery case does not
20 indicate which statute provided the cause of action, but
it does explain the plaintiffs "allege[ ] that [BIA] does
21 not have the authority to alter the tribal roll
established in 1940, pursuant to the Act of 1940." 779
22 F. Supp. at 127.
23
24
25
26
27
28

14

The Turtle Mountain Band adopted the 1940 roll as
its foundational document: its constitution provides the
band's membership would be composed of: "(a) All persons
whose names appear on the roll prepared pursuant to
Section 2 of the Act of May 24, 1940 (54 Stat. 219), and
approved by the Secretary of the Interior on March 15,
1943" and "(b) All descendants of persons whose names
appear on the roll defined in Section 1(a) of this
article, provided that such descendants possess onefourth or more Indian blood, . . . ." 779 F. Supp. at
128.
23

1 Mountain roll current must respect the blood degrees
2 listed on the 1940 roll.15
3

Id. at 129–30.

Plaintiffs argued at the hearing that affirming the

4 BIA's action in this case risks creating tension with
5 Allery's holding.

Not so.

Allery is different from this

6 case for a number of reasons, but the one that matters
7 most is that in Allery the court reviewed the BIA's
8 application of a federal statute; in contrast, the Court
9 here reviews (for reasonableness) the BIA's review of the
10 Tribe's interpretation of their own law, for which the
11 Bureau has a long-standing policy of deference.16

The

12 difference in procedural posture is no mere technicality.
13 Allery subjected the Bureau's action to exacting
14 scrutiny.

Here the Court's standard of review is highly

15 deferential.

And, in addition, the BIA treads lightly

16 when reviewing any tribe's interpretation of its own
17 membership laws –- especially when the Bureau has no
18 clear standard upon which to base its decision.
19
20

15

22

16

Importantly, the Turtle Mountain constitution
delegated to the BIA the responsibility to keep its
21 membership roll current. See 779 F. Supp. at 128.

23
24
25
26
27
28

Two other relevant distinctions are worth
mentioning. First, in Allery the BIA attempted to
reconstruct the entire 1940 census roll, in direct
conflict with the Turtle Mountain Band's constitution;
here, the BIA is not trying to alter the 1940 Census,
instead it looked outside the 1940 Census at relevant
evidence in order to review effectively the Tribe's
enrollment decision. Second, the Turtle Mountain
constitution delegates authority to the BIA to keep its
roll current, but the SYB Articles assign that authority
to the Tribe itself, compare 779 F. Supp. at 128, with R.
202, which supports the view that the federal government
should respect the Tribe's decision.
24

1

In the absence of a clear directive in the SYB

2 Articles that blood degree of prospective members should
3 be determined based only on the blood degree of an
4 ancestor as listed on the 1940 Census, the Court declines
5 to second guess the Bureau's reasonable decision to apply
6 SYB law in the same manner in which the Tribe applied it.
7

The BIA correctly considered the entire Record when

8 denying Plaintiffs' appeals, so its decision was not
9 arbitrary or capricious.
10
11
12

V.

CONCLUSION

The Bureau's action was reasonable.

Accordingly, the

13 Court DENIES Plaintiffs' motion for summary judgment, and
14 GRANTS Defendants' cross-motion for summary judgment.
15
16

It is so ordered.

17
18
19 Dated:
20

January 15, 2015
VIRGINIA A. PHILLIPS
United States District Judge

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