Hammond v. Jewell et al

Filing 26

MEMORANDUM and ORDER signed by Senior Judge William B. Shubb on 10/7/2015 GRANTING 16 Defendants' Motion to Dismiss. Plaintiff has twenty days from the date this Order is signed to file an amended complaint, if he can do so consistent with this Order. (Kirksey Smith, K)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo----

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PATRICK HAMMOND III,
Plaintiff,

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CIV. NO. 1:15-00391 WBS SKO
MEMORANDUM AND ORDER RE: MOTION
TO DISMISS

v.
SALLY JEWELL, Secretary of
the U.S. Department of the
Interior; INTERIOR BOARD OF
INDIAN APPEALS, U.S.
Department of the Interior;
AMY DUTSCHKE, Regional
Director, Pacific Regional
Office, Bureau of Indian
Affairs; TROY BURDICK,
Superintendent, Central
California Agency, Bureau of
Indian Affairs,
Defendants.

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----oo0oo---Plaintiff alleges he was ousted from the leadership of

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the Picayune Rancheria of Chukchansi Indians Tribe in violation

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of tribal law and brought this suit against numerous federal

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defendants seeking reinstatement to the Tribal Council.
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Presently before the court is defendants’ motion to dismiss for

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lack of subject matter jurisdiction pursuant to Federal Rule of

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Civil Procedure 12(b)(1) and for failure to state a claim

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pursuant to Rule 12(b)(6).

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I. Factual and Procedural Background

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Plaintiff was elected to the Tribal Council of the

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Picayune Rancheria of Chukchansi Indians Tribe in December 2008.

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(Compl. ¶ 10.)

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Tribal Council for alleged violations of the tribal Ethics

After initially suspending plaintiff from the

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Ordinance, the Tribal Council permanently removed him on June 17,

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2011 after a hearing.

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(Id. ¶¶ 13-14.)

Following the December 3, 2011 election, three factions

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were embroiled in a power struggle over tribal leadership,

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resulting in legal disputes in the Tribal Court and even

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violence.

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the factions and it does not appear that their leadership

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disputes were related to plaintiff’s removal from the Tribal

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Council.

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factions submitted contracts under the Indian Self-Determination

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and Education Assistance Act (“ISDEAA”) to the Bureau of Indian

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Affairs (“BIA”).

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2014 BIA Decision”) (Docket No. 16-2).)

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(Id. ¶¶ 19-23.)

Plaintiff was not a member of any of

Asserting conflicting claims of leadership, all three

(See id. ¶ 23; Defs.’ Ex. B. at 1 (“Feb. 11,

The BIA Superintendent returned the contract requests

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from all three factions and concluded it would recognize the

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results of the disputed December 1, 2012 election.

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2014 BIA Decision at 6.)

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Superintendent’s decision and the BIA Regional Director affirmed

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the decision to return all three contract requests, but vacated

(Feb. 11,

All three factions appealed the

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the decision to recognize the results of the disputed election

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because the BIA did not have “the authority to determine which of

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the opposing factions[’] interpretation of the Tribe’s law is

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correct.”

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“recognition of a government is essential for the purpose of

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contracting under the ISDEAA and that the BIA “will conduct

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business, on an interim basis, with the last uncontested Tribal

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Council elected December 2010.”

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not identify plaintiff as a member of that Tribal Council because

(Id.)

The Regional Director determined that

(Id.)

The Regional Director did

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“[t]he record reflects that Nokomis Hernandez was appointed by

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the Tribal Council to replace Patrick Hammond, III.”

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n.3.)

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(Id. at 3

Two factions and plaintiff appealed that decision to

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the BIA Office of Hearings and Appeals and a two-judge panel

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concluded that exigent circumstances justified making the

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Regional Director’s decision to recognize the 2010 Tribal Council

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“for government-to-government purposes” effective immediately.

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(Defs.’ Ex. C at 5 (“Feb. 9, 2015 BIA Decision”) (Docket No. 16-

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3).)

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acceptance of his subsequent removal from the Council and

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replacement,” the panel did not address the merits of that

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dispute in its February 9, 2015 decision.

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Although plaintiff had appealed “the Regional Director’s

(Id. at 5 n.2.)

Plaintiff initiated this lawsuit, alleging he was

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“unethically and unconstitutionally removed from his position on

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the Tribal Council.”

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attempted to seek help from defendants in resolving his allegedly

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wrongful removal, but defendants “failed to exercise their

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inherent authority to correct this manifest injustice and error.”

(Compl. ¶ 15.)

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He further alleges that he

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(Id. ¶ 17.)

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U.S.C. § 1983 based on a denial of procedural due process; (2)

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the Indian Civil Rights Act (“ICRA”), 25 U.S.C. § 1302; and (3)

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the Administrative Procedure Act (“APA”), 5 U.S.C. § 706 et seq.

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He asks the court to vacate the February 11, 2014 and February 9,

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2015 BIA decisions, declare that his removal by the Tribal

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Council was invalid and void, and declare that he is a member of

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the Tribal Council.

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dismiss the Complaint for lack of subject matter jurisdiction

Plaintiff asserts claims for violations of (1) 42

(Id. at 8-9.)

Defendants now move to

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pursuant to Rule 12(b)(1) or, alternatively, for failure to state

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a claim upon which relief can be granted pursuant to Rule

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12(b)(6).

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II. Discussion

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Rule 12(b)(1) authorizes a court to dismiss an action

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over which it lacks subject matter jurisdiction.

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challenges the court’s jurisdiction, the party invoking its

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jurisdiction bears the burden of proving that jurisdiction

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exists.

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376 (1994); Tosco Corp. v. Cmtys. for a Better Env’t, 236 F.3d

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495, 499 (9th Cir. 2001), abrogated on other grounds by Hertz

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Corp. v. Friend, 559 U.S. 77 (2010).

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When a party

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,

On a Rule 12(b)(6) motion to dismiss, the court must

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accept the allegations in the complaint as true and draw all

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reasonable inferences in favor of the plaintiff.

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Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by

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Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S.

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319, 322 (1972).

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must plead “only enough facts to state a claim to relief that is

See Scheuer v.

To survive a motion to dismiss, a plaintiff

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plausible on its face.”

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544, 570 (2007).

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for more than a sheer possibility that a defendant has acted

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unlawfully,” and where a plaintiff pleads facts that are “merely

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consistent with a defendant’s liability,” it “stops short of the

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line between possibility and plausibility.”

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556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557).

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A.

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Bell Atl. Corp. v. Twombly, 550 U.S.

This “plausibility standard,” however, “asks

Ashcroft v. Iqbal,

Section 1983 and ICRA Claims
“Internal matters of a tribe are generally reserved for

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resolution by the tribe itself, through a policy of Indian self-

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determination and self-government as mandated by the Indian Civil

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Rights Act.”

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1171, 1185 (E.D. Cal. 2009) (O’Neill, J.).

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generally lacks jurisdiction to resolve matters of internal

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tribal governance.1

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11, 2014 decision, “the determination of tribal leadership is

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quintessentially an intra-tribal matter raising issues of tribal

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sovereignty.”

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v. Acting Sacramento Area Dir., 29 I.B.I.A. 122, 123, 1996 WL

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Timbisha Shoshone Tribe v. Kennedy, 687 F. Supp. 2d

Id.

A district court thus

As the BIA recognized in its February

(Feb. 11, 2014 BIA Decision at 6 (quoting Hamilton

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There is an exception where a tribe’s own governing
documents vest federal agencies with ultimate authority over
certain decisions. Alto v. Black, 738 F.3d 1111, 1115, 1123 (9th
Cir. 2013) (recognizing that the BIA had authority to decide a
membership dispute where the tribe’s own constitution required
the BIA to approve the deletion of individual’s names from
membership). The Constitution of the Picayune Reservation does
not vest the BIA with the authority to review internal tribal
leadership disputes. (See Defs.’ Ex. A (Constitution of the
Picayune Reservation); see also Feb. 11, 2014 BIA Decision at 6
(“There is no provision in the Tribe’s Constitution or federal
law that provides the BIA with authority to determine which of
the opposing factions[’] interpretation of the Tribe’s law is
correct . . . .”).)
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165057, at *2 (Mar. 12, 1996))); see also In re Sac & Fox Tribe

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of Miss. in Iowa/Meskwaki Casino Litig., 340 F.3d 749, 763-64

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(8th Cir. 2003) (holding that the district court lacked

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jurisdiction to resolve an internal tribal election dispute); see

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Timbisha, 687 F. Supp. at 1185 (considering elections to be among

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the internal affairs of the tribe that do not come within the

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purview of review by federal courts).

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Here, plaintiff’s § 1983 and ICRA claims are based on
the allegation that his removal from the Tribal Council violated

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tribal law, and his prayer for relief asks the court to order

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that he be reinstated on the Tribal Council.

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seeks “a form of relief that the federal courts cannot provide,

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namely, resolution of [an] internal tribal leadership dispute,”

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the court lacks jurisdiction over his claims.

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Tribe, 340 F.3d at 763; see also Timbisha, 687 F. Supp. 2d at

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1185 (holding that the plaintiff’s claims were non-justiciable in

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federal court because they would require the court to resolve the

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parties’ election dispute, an issue central to tribal self-

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determination and self-government).

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grant defendants’ motion to dismiss plaintiff’s § 1983 and ICRA

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claims for lack of subject matter jurisdiction.2

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Because plaintiff

In re Sac & Fox

Accordingly, the court must

B. APA Claim

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Plaintiff’s ICRA claim also fails because “ICRA does
not operate against the federal government.” Cal. Valley Miwok
Tribe v. Salazar, 967 F. Supp. 2d 84, 93 (D.D.C. 2013); see also
25 U.S.C. § 1302(a)(8) (“No Indian tribe in exercising powers of
self-government shall-- . . . deny to any person within its
jurisdiction the equal protection of its laws or deprive any
person of liberty or property without due process of law . . . .”
(emphasis added).
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The APA permits a reviewing court to review a “final

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agency action,” 5 U.S.C. § 704, and “hold unlawful and set aside

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actions, findings, and conclusions found to be . . . arbitrary,

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capricious, an abuse of discretion, or otherwise not in

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accordance with law.”

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for § 1331 purposes is whether the BIA violated the APA; that it

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is claimed to have done so in a case involving application of

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tribal law does not matter, any more than it would matter to

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§ 1331 jurisdiction over an APA case involving an issue of state

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law.”

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Id. § 706(2)(A).

“The federal question

Alto v. Black, 738 F.3d 1111, 1124 (9th Cir. 2013).
Under the APA, “[a] person suffering a legal wrong

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because of agency action, or adversely affected or aggrieved by

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agency action within the meaning of a particular statute, is

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entitled to judicial review thereof.”

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added).

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is no right to sue for a violation of the APA in the absence of a

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‘relevant statute’ whose violation ‘forms the legal basis for

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[the] complaint.’”

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of Immigration Review, 959 F.2d 742, 753 (9th Cir. 1991) (quoting

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Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 883 (1990)).

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5 U.S.C. § 702 (emphasis

“Section 702 does not create substantive rights.

There

El Rescate Legal Servs., Inc. v. Exec. Office

“Absent a statute with substantive standards, judicial

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review is precluded because there is no ‘law to apply [and] “no

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meaningful standard against which to judge the agency’s exercise

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of discretion.”’”

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Interior, No. 2:14-CV-00951-SU, 2015 WL 1538501, at *11 (D. Or.

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Apr. 7, 2015) (quoting Or. Nat’l Res. Council v. Thomas, 92 F.3d

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792, 798 (9th Cir. 1996) (alteration in original)); see also Pub.

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Lands for the People, Inc. v. U.S. Dep’t of Agric., 733 F. Supp.

Eason Land Co., LLC v. Sec’y of U.S. Dep’t of

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2d 1172, 1180 (E.D. Cal. 2010) (“A claim that an agency acted

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arbitrarily and capriciously for purposes of the APA cannot

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‘stand free of any other law.’

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mechanism for enforcing obligations arising under other

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authority.” (quoting Or. Nat’l Res. Council, 92 F.3d at 798)).

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Instead, the APA provides a

Here, plaintiff’s Complaint does not allege what

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statute provides the substantive standards to review the BIA’s

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decision and appears to allege only a deficient, free-standing

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claim that the BIA’s decision was “arbitrary and capricious” in

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violation of the APA.

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To the extent plaintiff relies on the Due Process

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Clause as the “standard against which to judge the agency’s

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exercise of discretion,” Or. Nat’l Res. Council, 92 F.3d at 798,

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this claim must fail.

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under the Fifth Amendment, [the plaintiff] must first establish a

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constitutionally protected interest.

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more than a unilateral expectation of it; instead, she must have

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a legitimate claim of entitlement.”

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F.3d 653, 660 (9th Cir. 2007) (citing Bd. of Regents of State

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Colleges v. Roth, 408 U.S. 564, 569–70 (1972)).

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interests, of course, are not created by the Constitution.

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Rather they are created and their dimensions are defined by

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existing rules or understandings that stem from an independent

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source such as state law-—rules or understandings that secure

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certain benefits and that support claims of entitlement to those

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benefits.”

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“To assert a procedural due process claim

[The plaintiff] must have

Stanley v. Gonzales, 476

“Property

Roth, 408 U.S. at 577.
Here, the system of tribal leadership and plaintiff’s

ability and right to serve on the Tribal Council stem exclusively
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from the Constitution of the Picayune Reservation.

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Ex. A at arts. VII, X (Constitution of the Picayune

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Reservation).)

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federal or state statute or right gave him a legitimate claim of

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entitlement to his continued service on the Tribal Council.

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Hoopa Valley Tribe v. Christie, 812 F.2d 1097, 1102 (9th Cir.

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1986) (holding that even though a federal statute gives “Indians

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. . . a preference for appointment to vacancies in the

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administration of services or functions affecting Indians,” such

(See Defs.’

Plaintiff cannot plausibly allege that any

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as the BIA, the statute “did not create proprietary rights to

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Cf.

their jobs”).

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Even assuming the BIA decisions could be challenged

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under the APA, plaintiff does not challenge the limited decision

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the BIA reached in this case.

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for carrying on government relations with the Tribe, is obligated

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to recognize and deal with some tribal governing body in the

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interim before resolution of [] election dispute[s].”

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v. Grassrope, 708 F.2d 335, 339 (8th Cir. 1983).

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decisions challenged in this case, the BIA acted within its

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limited authority to recognize tribal leadership on an interim

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basis for the limited purpose of government-to-government

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dealings.

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the election disputes and expressly refrained from interfering

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with the tribe’s sovereignty in that respect.

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BIA Decision at 6 (recognizing that it “does not have the

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authority to determine the Tribe’s permanent leadership”); Feb.

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9, 2015 BIA Decision at 5.)

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“The BIA, in its responsibility

Goodface

In the

As the BIA explained, it lacked the ability to resolve

(See Feb. 11, 2014

Plaintiff does not challenge the BIA’s decision
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regarding whom to deal with in the interim for “government-to-

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government” purposes while the Tribe resolves its leadership

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disputes.

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to address the merits of his allegedly unlawful removal from the

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Tribal Council in violation of tribal law.

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(“Review of the subject decision and subsequent determination to

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make that decision effective is sought insofar as said decision

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states that 1) the Tribal Council’s removal of plaintiff from the

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Tribal Council on or about June 17, 2011, is valid action; 2)

Instead, plaintiff seeks review of the BIA’s refusal

(See Compl. ¶ 2

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plaintiff is not a member of the Tribal Council pursuant to the

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election held on December 5, 2010, and; 3) plaintiff is not a

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member of the last undisputed Tribal council.”).)

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In Goodface, tribe factions similarly disputed a tribal

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election and the BIA refused to recognize either faction and

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indicated it would “deal with both councils on a de facto basis.”

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708 F.2d at 337.

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arbitrarily and capriciously by effectively creating a hiatus in

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tribal government” and was “obligated to recognize and deal with

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some tribal governing body in the interim before resolution of

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the election dispute.”

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however, that the district court “should not have addressed the

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merits of the election dispute” in reviewing the BIA’s action and

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“overstepped the boundaries of its jurisdiction in interpreting

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the tribal constitution and bylaws and addressing the merits of

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the election dispute.”

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The Eighth Circuit held that the BIA “acted

Id. at 338-39.

It further explained,

Id. at 339.

Even if this court somehow interprets plaintiff’s

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allegations as attacking the BIA’s decision that plaintiff was

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not a member of the Tribal Council that it recognized for interim
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government-to-government relations and that the decision is

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subject to attack under the APA, the court could not assess

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plaintiff’s claims without “interpreting the tribal constitution

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and bylaws and addressing the merits” of plaintiff’s removal by

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the Tribal Council.

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jurisdiction to engage in this inquiry.3

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C.

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Similar to the BIA, the court lacks
Id.

Conclusion
In Lewis v. Norton, the Ninth Circuit observed that

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“[t]he plaintiffs of course did not sue the tribe directly, but

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filed this action against the federal agencies responsible for

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the regulation of tribal affairs, including gaming.

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because they recognized that tribal immunity would create, at the

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least, a serious obstacle.”

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The Ninth Circuit explained that the plaintiffs’ “efforts to do

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an end run around tribal immunity must also fail” because

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“tribes, not the federal government, retain authority to

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determine tribal membership.”

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the federal government in an attempt to avoid tribal immunity

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with respect to intra-tribal affairs.

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plaintiff from his leadership position and plaintiff’s avenue to

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They did so

424 F.3d 959, 963 (9th Cir. 2005).

Id.

A plaintiff cannot simply sue

The Tribal Council removed

Nor do the other cases plaintiff cites aid his
position. In Salazar, a tribal faction challenged only the BIA’s
determination of the faction it would recognize for governmentto-government relations and the district court did not identify
the controlling standard for review under the APA. See 967 F.
Supp. 2d at 89. Payton v. U.S. Department of Agriculture
involved a farmer’s challenge under the APA of a Department of
Agriculture decision and thus tribal sovereignty and immunity
were not implicated. 337 F.3d 1163, 1165, 1168 (10th Cir. 2003).
The BIA decision reviewed in Bernard v. U.S. Department of
Interior, dealt with the BIA’s own alleged misconduct and
similarly did not involve tribal sovereignty or immunity. 674
F.3d 904, 906-07 (8th Cir. 2012).
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challenge that action remains with the Tribe.

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Accordingly, because the court lacks jurisdiction to

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hear plaintiff’s § 1983 and ICRA claims and plaintiff fails to

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allege a cognizable claim under the APA over which the court

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could exercise jurisdiction, the court must grant defendants’

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motion to dismiss.

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plaintiff’s claims are subject to dismissal, the court need not

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address defendants’ alternative argument that plaintiff lacks

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Article III standing.

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Because the court finds that all of

IT IS THEREFORE ORDERED that defendants’ motion to
dismiss be, and the same hereby is, GRANTED.

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Plaintiff has twenty days from the date this Order is

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signed to file an amended complaint, if he can do so consistent

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with this Order.

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Dated:

October 7, 2015

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