Cahto Tribe of the Laytonville Rancheria v. Dale Risling et al

Filing 62

ORDER signed by Judge Garland E. Burrell, Jr. on 9/21/2011 ORDERING that Pltf's 29 Motion for Summary Judgment is DENIED, Dft's 36 Motion for Summary Judgment is GRANTED and the BIA's 2009 Decision is AFFIRMED. Judgment shall be entered in favor of Dfts. CASE CLOSED. (Zignago, K.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CAHTO TRIBE OF THE LAYTONVILLE
RANCHERIA,

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Plaintiff,

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v.
AMY DUTSCHKE, Regional Director
for the Pacific Region, Bureau
of Indian Affairs, United States
Department of the Interior,
KEN SALAZAR, Secretary of the
Interior, United States
Department of the Interior,
LARRY ECHO HAWK, Assistant
Secretary – Indian Affairs,
United States Department of the
Interior,
Defendants.
________________________________

2:10-cv-01306-GEB-GGH
ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT

20

Cahto Tribe of the Laytonville Rancheria (the “Tribe”) seeks

21

an order under the Administrative Procedures Act (“APA”) vacating and

22

reversing the Bureau of Indian Affairs’ (“BIA”) administrative decision

23

that

24

Sloan/Hecker family who were disenrolled by the Tribe in 1995. A hearing

25

on the pending cross motions for summary judgment was held on May 23,

26

2011. For the reasons stated below, Plaintiff’s motion for summary

27

judgment is denied, Defendants’ motion for summary judgment is granted,

28

and the BIA’s decision is affirmed.

ordered

the

Tribe

to

re-enroll

1

twenty-two

members

of

the

1

I. LEGAL STANDARD

2

The BIA’s decision may be vacated and reversed under the APA

3

only if it is “arbitrary, capricious, an abuse of discretion, or

4

otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The

5

reviewing court should reverse an agency decision as arbitrary and

6

capricious “only if the agency relied on factors Congress did not intend

7

it to consider, entirely failed to consider an important aspect of the

8

problem, or offered an explanation that runs counter to the evidence

9

before the agency[.]” The Lands Council v. McNair, 537 F.3d 981, 987

10

(9th

11

omitted). However, “[p]urely legal questions are reviewed de novo.”

12

Howard v. F.A.A., 17 F.3d 1213, 1215 (9th Cir. 1994); see 5 U.S.C. § 706

13

(“the reviewing court shall decide all relevant questions of law, [and]

14

interpret constitutional and statutory provisions”).

Cir.

2008)

(en

banc)

(citation

and

internal

15

marks

II. UNCONTROVERTED FACTS

16

quotation

A. Membership in the Tribe

17

The Tribe “is a federally-recognized Indian tribe.” (Pl.’s

18

Statement of Undisputed Facts (“SUF”) ¶ 1; Defs.’ SUF ¶ 1.) “The Tribe

19

is organized under Articles of Association adopted by the Tribe in 1967

20

. . . .” (Pl.’s SUF ¶ 2; Defs.’ SUF ¶ 1.)

21

Membership in the Tribe is governed by Article III of the

22

Tribe’s

23

provides that persons eligible for membership are:

24
25
26
27

Articles

of

Association.

(Pl.’s

SUF

¶

3.)

Article

1. All living persons listed on the official census
of the Laytonville Rancheria as of October 31,
1944.
2. All living descendants of persons listed on the
official census of the Laytonville Rancheria as of
October 31, 1944, provided such descendants possess
at least one-fourth (1/4) degree California Indian
blood.

28
2

III(A)

1

(Articles of Ass’n III(A), Administrative Record (“AR”) 286.)

2

Paragraph 3 of Article III(A) provides:

3

Persons who meet the requirements of Article
III.A.1 and Article III.A.2 shall be ineligible for
membership if they have been affiliated with any
other tribe, group or band to the extent of (a)
being included on a formal membership roll, (b)
having received an allotment or formal assignment
of land, (c) having been named as a distributee or
dependent of a distributee in a reservation
distribution plan.

4
5
6
7
8

Id.

9

“The Tribe has enacted an ordinance governing enrollment,

10

Ordinance No. 1.” (Pl.’s SUF ¶ 4.) Ordinance No. 1 “set[s] forth

11

requirements and procedures to govern the enrollment of persons whose

12

names shall be placed on the membership roll of the [Tribe].” (Ordinance

13

No. 1, AR 280.) Section 6 of Ordinance No. 1 concerns “Appeals” and

14

prescribes: “A person disapproved for enrollment shall be notified in

15

writing of the reason(s) for disapproval and informed of his right to

16

appeal to the Area Director, Bureau of Indian Affairs, Sacramento,

17

California, within 30 days following receipt of the rejection notice.”

18

Id.

19

Preparation” and prescribes: “After final decisions have been rendered

20

on all applications, a roll shall be prepared with a certification as to

21

its correctness by the Enrollment Committee and the Area Director,

22

Bureau of Indian Affairs.” Id. 282. Section 8 of Ordinance No. 1

23

concerns “Keeping Membership Roll Current” and prescribes: “Each new

24

Executive Committee . . . shall be responsible for reviewing the

25

membership roll and keeping the roll current by . . . making corrections

26

as necessary including deleting of names of persons on the roll who were

27

placed there erroneously, fraudulently, otherwise incorrectly . . . .”

28

Id.

285.

Section

7

of

Ordinance

No.

3

1

concerns

“Membership

Roll

1

B. Disenrollment of the Sloan/Hecker Family

2

“On September 19, 1995 the Tribe’s General Council voted to

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remove from the Tribe’s membership 22 individuals, members of a family

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with the surname Sloan, sometimes described as the Sloans/Heckers.”

5

(Pl.’s SUF ¶ 6; Defs.’ SUF ¶ 2.) “In its September 19, 1995 decision,

6

the General Council found that the Sloans ‘have been affiliated with

7

other tribes by being included on formal membership rolls and/or * * *

8

have been a distributee of a reservation distribution plan, namely the

9

Hoopa/Yurok settlement’ and thus were ineligible for membership under

10

Article III.A.3 of the Tribe’s Articles of Association.” (Pl.’s SUF ¶ 7;

11

Defs.’ SUF ¶ 2.)

12

“Soon after the Tribe’s disenrollment decision, on September

13

29,

14

recognition of the disenrollment action.” (Defs.’ SUF ¶ 4.) “On October

15

4, 1995, the [BIA] Superintendent responded stating that the matter was

16

internal to the Tribe and that he had referred it to the Tribe’s

17

Executive Committee.” Id.

1995,

18

an

attorney

representing

the

Tribe

requested

the

BIA’s

“From 1995 to 1999, BIA officials declined requests by the

19

Sloans

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disenrollment action was an internal matter.” (Pl.’s SUF ¶ 11.)

and

others

to

intervene

and

maintained

that

the

Tribe’s

21

“On May 13, June 24, and August 2, 1999, Gene Sloan, one of

22

the disenrolled individuals, wrote to the Regional Director and formally

23

requested an appeal regarding the Tribe’s disenrollment decision and the

24

removal of the Sloan/Heckers from the Tribe’s membership rolls.” (Defs.’

25

SUF ¶ 7; Pl.’s SUF ¶ 9.) The BIA did not act on Gene Sloan’s appeals

26

until 2009. (2009 Decision, AR 1-5.)

27

“[I]n July 1999, after receiving additional complaints from

28

some of the disenrolled individuals, the Superintendent [of the BIA]
4

1

wrote to the Tribe and asked that the Tribe reconsider its disenrollment

2

decision.” (Defs.’ SUF ¶ 5.) “Following this communication, the BIA

3

corresponded and met with Tribal officials concerning the disenrollment

4

decision, . . . and as a result, the Tribe agreed to attempt to resolve

5

the matter internally.” Id. ¶ 6.

6

C. First BIA Decision and Subsequent Appeals

7

“On February 18, 2000, the Superintendent wrote to the Tribe’s

8

Chairperson acknowledging receipt of a letter . . . informing the

9

Superintendent that the Tribe’s efforts to resolve the matter internally

10

had been unsuccessful and requesting . . . that the dispute be referred

11

to a formal mediation service.” (Defs.’ SUF ¶ 8; Pl.’s SUF ¶ 12.) “The

12

Superintendent did not respond to the attorney’s request for referral to

13

mediation, but instead, informed the Chairperson that . . . the BIA had

14

not changed its initial position and did not recognize the Tribe’s

15

disenrollment decision.” Id.

16

“The

Tribe

appealed

the

Superintendent’s

decision

dated

17

February 18, 2000 to the Regional Director [of the BIA].” (Pl.’s SUF ¶

18

13; Defs.’ SUF ¶ 9.) “On December 19, 2000, the Regional Director issued

19

a decision stating that he fully supported the Superintendent’s decision

20

not to recognize the Tribe’s disenrollment decision.” (Defs.’ SUF ¶ 10;

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Pl.’s SUF ¶ 16.)

22

“The Tribe appealed the Regional Director’s December 19, 2000

23

decision to the IBIA [(Interior Board of Indian Appeals)].” (Pl.’s SUF

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¶ 17; Defs.’ SUF ¶ 11.) “By an opinion and order entered on December 19,

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2002,

26

Superintendent’s decisions.” (Pl.’s SUF ¶ 22; Defs.’ SUF ¶ 12.) In its

27

decision, the IBIA did “not reach the merits of the enrollment dispute

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because it agree[d] with the Tribe that the BIA officials lacked

the

IBIA

vacated

the

Regional

5

Director’s

and

Agency

1

decision-making authority in the circumstances [in which the issue

2

arose].” Cahto Tribe of Laytonville Rancheria v. Pac. Reg’l Dir., Bureau

3

of Indian Affairs, 38 IBIA 244, 246 (2002).

4

D. Second BIA Decision and Current Appeal

5

“From the date of the IBIA’s 2002 decision . . . until shortly

6

before March 26, 2009, the Tribe heard nothing from the Bureau of Indian

7

Affairs to suggest that any issues regarding . . . the Tribe’s September

8

19, 1995 decision were unresolved or pending.” (Pl.’s SUF ¶ 25.)

9

“On October 3, 2008, an attorney for the Sloan/Heckers wrote

10

to the Regional Director ‘on behalf of Mr. Gene William Sloan of

11

Laytonville Rancheria and the members of his family,’ and advised the

12

Regional Director that the BIA had never taken action on Mr. Sloan’s

13

1999 appeals.” (Defs.’ SUF ¶ 15.) “Four months later, when the BIA still

14

had not acted on Mr. Sloan’s 1999 appeals, the Sloan/Heckers’ attorney

15

wrote to the Regional Director again . . . .” Id. ¶ 16.

16

“On March 26, 2009 the Regional Director issued a decision

17

[(the ‘2009 Decision’)] in which he assumed jurisdiction over the

18

enrollment matter in response to Mr. Sloan’s appeals dated May 13, June

19

24 and August 2, 1999 and citing 25 C.F.R. Part 62.” (Pl.’s SUF ¶ 26;

20

Defs.’ SUF ¶ 17.) The Regional Director stated: “after reviewing the

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Tribe’s disenrollment action, the Tribe’s misinterpretation of the

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Hoopa/Yurok Settlement Act, and its mis-application of Article III of

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its Articles of Association violated members rights under federal law.”

24

(2009 Decision, AR 005). The Regional Director then “instruct[ed] the

25

General Council to place the Sloan/Hecker Family members names on the

26

Tribe membership roll immediately.” Id.

27

Subsequently, the Tribe filed this action in federal court

28

challenging the BIA’s 2009 Decision under the APA. (Compl. ¶ 1.) The
6

1

Tribe alleges the following five claims in its Complaint: 1) the

2

principles of res judicata and administrative finality barred the BIA

3

from rendering its 2009 Decision; 2) the BIA’s decision is in excess of

4

statutory authority and contrary to law; 3) the BIA failed to defer to

5

the Tribe’s interpretation of tribal law regarding eligibility for

6

membership; 4) the BIA’s decision was arbitrary and capricious and

7

unwarranted by the facts; and 5) the BIA’s decision is contrary to

8

federal regulations. Id. ¶¶ 25-44.

9

III. DISCUSSION

10

A. The IBIA’S 2002 Decision

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The Tribe argues the BIA “was precluded by [the IBIA] decision

12

from

13

jurisdiction to review the Tribe’s 1995 decision to disenroll the

14

Sloans.” (Pl.’s Mot. 13:5-8.) Defendants counter “there has been no

15

final judgment on the merits concerning the BIA’s jurisdiction to review

16

the Tribe’s disenrollment decision in the circumstances presented in

17

this case, i.e., in the context of Gene Sloan’s 1999 appeals from the

18

disenrollment decision.” (Defs.’ Mot. 16:8-10.)

relitigating

the

IBIA’s

determination

that

the

BIA

lacked

19

“Res judicata is applicable whenever there is (1) an identity

20

of claims, (2) a final judgment on the merits, and (3) privity between

21

parties.” U.S. v. Liquidators of European Federal Credit Bank, 630 F.3d

22

1139, 1150 (9th Cir. 2011) (citation and internal quotation marks

23

omitted).

24
25
26
27

When applied to administrative decisions, the res
judicata doctrine is not as rigid as it is with
courts; there is much flexibility which is intended
to adapt the doctrine to the unique problems of
administrative justice. Nevertheless, the doctrine
retains full force when applied to adjudications of
past facts, where the second proceeding involves
the same claim or the same transaction.

28
7

1

Stuckey v. Weinberger, 488 F.2d 904, 911 (9th Cir. 1973) (citations and

2

internal quotation marks omitted). “Although a dismissal because of lack

3

of jurisdiction is not res judicata on the merits of the underlying

4

action, a finding with respect to jurisdictional facts will be treated

5

as res judicata in subsequent actions with respect to those facts.”

6

Gupta v. Thai Airways Intern., Ltd., 487 F.3d 759, 767 (9th Cir. 2007)

7

(citation and internal quotation marks omitted).

8

The IBIA held that “nothing presently before the Board shows

9

that BIA had any jurisdiction, in the circumstances in which the issue

10

arose, to render a decision in the Tribe’s disenrollment dispute.” Cahto

11

Tribe, 38 IBIA at 249. The IBIA “decline[d] to interpret [25 C.F.R.]

12

Part 62 or the Tribe’s ordinance for the purpose of determining whether

13

Sloan’s appeals would be cognizable under that part [since] . . . it

14

[was] enough to note that neither the Superintendent nor the Regional

15

Director purported to address Sloan’s appeals.” Id. at 247-48. The

16

IBIA’s holding was limited to a finding that the BIA lacked jurisdiction

17

under the circumstances in which the issue arose. Id. at 249.

18

In the 2009 Decision, the BIA addressed Gene Sloan’s appeals

19

and asserted it had authority to act under 25 C.F.R. Part 62. (2009

20

Decision, AR 1-5.) The IBIA’s decision was limited to the circumstances

21

of the case and specifically did not address whether the BIA would have

22

jurisdiction if it was addressing Gene Sloan’s appeals and acting under

23

the authority granted in 25 C.F.R. Part 62. Since the scope of the

24

IBIA’s ruling does not encompass the BIA’s ability to act on Gene

25

Sloan’s appeals, the IBIA ruling does not bar the BIA’s 2009 Decision.

26

B. The BIA’s Delay in Acting on Gene Sloan’s Appeals

27

The Tribe argues the BIA’s “assumption of jurisdiction in the

28

2009 Decision was . . . arbitrary and capricious [since] [i]t was issued
8

1

more than 13 years after the Tribe’s September 19, 1995 decision and was

2

wholly inconsistent with the BIA’s action for six years following the

3

IBIA’s 2002 decision[.]” (Mot. 19:11-14.) Defendants counter that the

4

BIA did not “suddenly come to the conclusion that the appeals made by

5

Gene Sloan in 1999 were still pending, and that . . . [it] did not

6

arbitrarily reverse course one day after six years of silence or seeming

7

acquiescence.” (Defs.’ Mot. 19:10-12 (citation and internal quotation

8

marks omitted).)

9

“[A]n agency changing its course must supply a reasoned

10

analysis

11

deliberately changed, not casually ignored, and if an agency glosses

12

over or swerves from prior precedents without discussion it may cross

13

the line from the tolerably terse to the intolerably mute.” Northwest

14

Environmental Defense Center v. Bonneville Power Admin., 477 F.3d 668,

15

687-88 (9th Cir. 2007). “That is, an agency must cogently explain why it

16

has exercised its discretion in a given manner, and in reviewing that

17

explanation, we must consider whether the decision was based on a

18

consideration of the relevant factors and whether there has been a clear

19

error of judgment.” Id. at 687 (citation and internal quotation marks

20

omitted).

indicating

that

prior

policies

and

standards

are

being

21

The BIA’s decision to rule on Gene Sloan’s appeals was not a

22

change in course or a change in prior policies, since the BIA’s 2009

23

Decision is consistent with its prior decisions regarding the Tribe’s

24

1995

25

Superintendent

26

disenrollment decision; in February 2000, the Superintendent of the BIA

27

issued a decision in which he refused to recognize the Tribe’s decision

28

to disenroll the Sloan/Heckers; and in December of 2000, the Regional

disenrollment
of

decision.
the

BIA

For
asked

9

example,
the

Tribe

in
to

July

1999,

the

reconsider

its

1

Director of the BIA issued a decision in which he refused to recognize

2

the Tribe’s decision to disenroll the Slaon/Heckers. (AR 105-07, 175-76,

3

182-83.) Therefore, the BIA’s 2009 Decision was not a change in course

4

or a change in prior policies.

5

Although it is evident the BIA did not decide Gene Sloan’s

6

appeals in a timely manner since the BIA did not act upon those appeals

7

until 2009, it is also clear that Gene Sloan appealed the Tribe’s

8

decision in 1999. When the BIA acted on the appeals in 2009 that action

9

was in response to the urging of Gene Sloan; Gene Sloan wrote a letter

10

to the BIA in October 2008 in which he requested it act on his 1999

11

appeals. Even though the BIA was slow to act on Gene Sloan’s appeals,

12

this

13

capricious.

14

delay

does

not

make

the

BIA’s

2009

Decision

arbitrary

and

C. Authority to Review the Tribe’s Disenrollment Decision

15

The Tribe argues the BIA’s re-enrollment decision is unlawful

16

because the Tribe’s governing documents, consisting of its Articles of

17

Association and Ordinance Number 1, do not authorize the BIA to review

18

the Tribe’s disenrollment decision. (Pl.’s Mot. 25:10-13.) The Tribe

19

argues that “even where a tribe may delegate to the BIA authority to

20

review a matter, such as in the manner contemplated by 25 C.F.R. Part

21

62, the Tribe’s delegation of authority must be express and in plain

22

terms.” Id. 23:15-17. The Tribe argues the BIA “misconstrued the Tribe’s

23

Enrollment Ordinance” since the “plain text [of Ordinance Number 1] does

24

not allow appeals of tribal disenrollment decisions to the BIA[.]” Id.

25

25:10-12 (emphasis in original).

26

Defendants counter that the Tribe’s governing documents do

27

authorize the BIA’s review of the Tribe’s disenrollment decision that

28

was appealed; Defendants rely on provisions in the Tribe’s governing
10

1

documents as support for their position. (Defs.’ Mot. 12:16-13:19.)

2

Specifically, Defendants argue that sections 6 through 8 of Ordinance

3

Number 1, “read together”, “unquestionably provide for an appeal to the

4

[BIA] for determinations by the Tribe as to eligibility or ineligibility

5

for tribal membership.” (Defs.’ Reply 4:25; Defs.’ Mot. 13:21-14:1.)

6

“The

regulations

in

[25

C.F.R.

Part

62]

.

.

.

provide

7

procedures for the filing of appeals from adverse enrollment actions by

8

tribal committees, [if] . . . [a]n appeal to the Secretary is provided

9

for in the tribal governing document.” 25 C.F.R. § 62.2(b). 25 C.F.R. §

10

62.4(a)(3) prescribes: “A person who is the subject of an adverse

11

enrollment action may file . . . an appeal. An adverse enrollment action

12

is: . . . the disenrollment of a tribal member by a tribal committee

13

when the tribal governing document provides for an appeal of the action

14

to the Secretary[.]”

15

The Tribe’s governing documents provide for an appeal to the

16

BIA from adverse enrollment decisions. Section 6 of Ordinance Number 1

17

provides: “[a] person disapproved for enrollment” may appeal to the BIA;

18

section

19

certification as to its correctness by the . . . [BIA][;]” and section

20

8

21

corrections as necessary, including deleting of names of persons on the

22

roll who were placed there erroneously, fraudulently, [or] otherwise

23

incorrectly[.]” (Ordinance No. 1, AR 282, 285.) These sections provide

24

the BIA authority to review the subject disenrollment decision.

25

D. BIA’s Reversal of the Tribe’s Disenrollment Decision

7

states

states

the

the

membership

membership

roll

roll

is

to

is

be

to

kept

“be

prepared

current

by

with

a

“making

26

However, the Tribe also argues its disenrollment decision is

27

based upon its interpretation of its own tribal governing documents, and

28

therefore, is an interpretation based on its tribal sovereign authority
11

1

to which the BIA must give deference. (Pl.’s Mot. 27:3-6.) Defendants

2

counter the Tribe’s disenrollment decision is not based on the Tribe’s

3

interpretation of its governing documents, but rather constitutes the

4

Tribe’s misinterpretation of federal law prescribed in 25 U.S.C. § 1300i

5

et. seq., the Hoopa Yurok Settlement Act, and the Initial Yurok Voter

6

List prepared by the BIA in 1979, prior to the enactment of the Hoopa

7

Yurok Settlement Act. (Defs.’ Mot. 23:9-10.)

8

The BIA’s decision shall be set aside only if it is “not in

9

accordance with law.” 5 U.S.C. § 706(2)(A). “[U]nder the doctrines of

10

tribal

11

initially to interpret its own governing documents in resolving internal

12

disputes, and the [BIA] must give deference to a tribe’s reasonable

13

interpretation of its own laws.” Ransom v. Babbitt, 69 F. Supp. 2d 141,

14

150 (D.D.C. 1999) (internal quotation marks omitted) (emphasis added).

15

However, “the reviewing court shall decide all relevant questions of

16

law, [and] interpret constitutional and statutory provisions[.]” 5

17

U.S.C. § 706.

sovereignty

and

self-determination,

a

tribe

has

the

right

18

The Tribe based its decision on Article III(A)(3) of the

19

Tribe’s Articles of Association which prescribes: “[p]ersons who meet

20

the requirements [of membership] . . . , shall be ineligible for

21

membership if they have been affiliated with any other tribe, group or

22

band to the extent of (a) being included on a formal membership roll,

23

. . . [or] (c) having been named as a distributee or dependent of a

24

distributee in a reservation distribution plan.” (Articles of Ass’n

25

III(A), AR 286-87.) “In its September 19, 1995 decision, the [Tribe]

26

found that the [Sloan/Heckers] ‘have been affiliated with other tribes

27

by being included on formal membership rolls and/or . . . have been a

28

distributee of a reservation distribution plan, namely the Hoopa/Yurok
12

1

settlement’ and thus were ineligible for membership under Article

2

III.A.3 of the Tribe’s Articles of Association.” (Pl.’s SUF ¶ 7; Defs.’

3

SUF ¶ 2.) The Tribe relied on the “‘Initial Yurok Voter List’ dated June

4

21, 1979" for its conclusion that the Sloan/Heckers “were . . . on the

5

membership rolls of the Yurok Tribe[.]” (Pl.’s Mot. 33:1; Disenrollment

6

Meeting Minutes, AR 223.)

7

The

Tribe

argues

the

Hoopa

Yurok

Settlement

Act

is

a

8

“distribution of Reservation assets” within the meaning of “reservation

9

distribution plan” in its Articles of Association. (Pl.’s Mot. 32:5.)

10

However, what the Tribe characterizes as a distribution of reservation

11

assets is a legal settlement with the United States government, which

12

federal law has not defined as a distribution of reservation assets.

13

As

explained

in

the

Senate

Report

on

the

Hoopa

Yurok

14

Settlement Act, the Act is intended to “resolve long standing litigation

15

between the United States, the Hoop Valley Tribe and a large number of

16

individual Indians[.]” S. Rep. No. 100-564, at 1 (1988). 25 U.S.C. §

17

1300i-3 prescribes that the Hoopa Yurok Settlement Act establish the

18

Hoopa-Yurok Settlement Fund, which is composed of “monies derived from

19

the joint reservation which are held in trust” (25 U.S.C. § 1300i

20

(b)(1)) and a federal government monetary settlement contribution of

21

$10,000,000 (25 U.S.C. § 1300i-4(e)). The Senate Report explains “[t]he

22

Fund, with the Federal share and with any earned income, is to be

23

available to make the payments authorized by [25 U.S.C. § 1300i-5(d)].”

24

S. Rep. No. 100-564, at 20. 25 U.S.C. § 1300i-5(d) provides a lump sum

25

payment option; “[t]he option to elect a lump sum payment under this

26

section is provided solely as a mechanism to resolve the complex

27

litigation[.]” 25 U.S.C. § 1300i-5(d)(2). Therefore, the Sloan/Hecker

28
13

1

family members who received the lump sum payment option under 25 U.S.C.

2

§ 1300i-5(d) did not receive a distribution of reservation assets.

3

Further, contrary to the Tribe’s argument, the Initial Yurok

4

Voter List does not constitute a membership roll since the “the voters’

5

list clearly is not a membership roll for the Yurok Tribe and inclusion

6

on or exclusion from the list is not determinative of whether a person

7

will be eligible for membership in the Yurok Tribe.” Organization of the

8

Yurok Tribe-Voting for Interim Tribal Governing Committee; Qualification

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and Procedures for Preparing a Voting List, 44 Fed. Reg. 24536 (Apr. 25,

10

1979) (to be codified at 25 CFR pt. 55). Therefore the BIA’s 2009

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Decision was in accordance with law.

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E. Scope of Gene Sloan’s Appeals

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The Tribe argues Gene Sloan’s appeal was solely an appeal for

14

himself, not his family, and therefore, the BIA can only review the

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Tribe’s decision to disenroll Gene Sloan, not the entire Sloan/Hecker

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family. (Pl.’s Mot. 34:6-24.) The Tribe argues the BIA’s decision was

17

“in excess of authority under federal regulations and contrary to law”

18

since the BIA did not follow 25 C.F.R. § 62.5(b) which requires the name

19

of each individual appealing to be listed on the appeal. Id. 34:9-14.

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Defendants counter that all of the individuals affected by the

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Tribe’s disenrollment decision are included in enclosures to Gene

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Sloan’s June 24, 1999 appeal and are therefore incorporated in that

23

appeal. (Defs.’ Mot. 14:18-20.)

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In his letter dated June 24, 1999, Gene Sloan “formally

25

request[ed]

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removal from the Tribe Rolls . . . , in Resolution 99-6-3 and in the

27

original minutes of September 1995.” (AR 190.) Included with the June

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24, 1999, letter were enclosures, including a copy of the Cahto Tribe

an

appeal

regarding

our

14

(Sloan/Hecker

family

members)

1

Minutes from September 8, 1995 which listed the twenty two members of

2

the Tribe who were disenrolled. Id. 192, 222.

3

25 C.F.R. § 62.5(b) prescribes: “An appeal may be on behalf of

4

more than one person. However, the name of each appellant must be listed

5

in the appeal.” “Traditionally, an agency’s interpretation of its own

6

regulation is entitled to a high degree of deference.” Kwan v. Donovan,

7

777 F.2d 479, 480 (9th Cir. 1985). Since Gene Sloan’s letter dated June

8

24, 1999, in which he “formally request[ed] an appeal regarding our

9

(Sloan/Hecker family members) removal from the Tribe Rolls” included

10

enclosures which listed the twenty two members of the Sloan/Hecker

11

family who were disenrolled, Gene Sloan’s appeal sufficiently listed

12

each appellant under 25 C.F.R. § 62.5(b). Therefore, the BIA’s 2009

13

Decision was not in excess of it authority under 25 C.F.R. § 62.5(b) or

14

contrary to law.

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IV. CONCLUSION

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For the foregoing reasons, Plaintiff’s motion for summary

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judgment is DENIED, Defendants’ motion for summary judgment is GRANTED,

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and the BIA’s 2009 Decision is affirmed. Judgment shall be entered in

19

favor of Defendants. This case shall be closed.

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Dated:

September 21, 2011

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GARLAND E. BURRELL, JR.
United States District Judge

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