Paulk et al v. Jewell et al
Filing
60
MEMORANDUM and ORDER signed by Senior Judge William B. Shubb on 5/31/2017 ORDERING that plaintiffs' 44 Motion for summary judgment is DENIED. Defendants' 46 , 47 Motions for summary judgment are GRANTED. CASE CLOSED. (Zignago, K.)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
----oo0oo----
11
12
13
14
15
CALIFORNIA VALLEY MIWOK
TRIBE, a federally-recognized
Indian tribe, THE GENERAL
COUNCIL, SILVIA BURLEY,
RASHEL REZNOR; ANJELICA
PAULK; and TRISTIAN WALLACE,
CIV. NO. 2:16-01345 WBS CKD
MEMORANDUM AND ORDER RE: CROSSMOTIONS FOR SUMMARY JUDGMENT
Plaintiffs,
16
17
18
19
20
21
22
23
v.
RYAN ZINKE, in his official
capacity as U.S. Secretary of
Interior; MICHAEL BLACK, in
his official capacity as
Acting Assistant Secretary of
Interior-Indian Affairs;
WELDON LOUDERMILK, in his
official capacity as Director
of the Bureau of Indian
Affairs,
Defendants.
24
25
----oo0oo----
26
Plaintiffs Silvia Burley, Rashel Reznor, Anjelica
27
Paulk, and Tristian Wallace (“Burley faction”) brought this
28
action against defendants Secretary of Interior Ryan Zinke,
1
1
Acting Assistant Secretary of Interior Michael Black, and
2
Director of the Bureau of Indian Affairs (“BIA”) Weldon
3
Loudermilk1 (“federal defendants”) for violation of the
4
Administrative Procedures Act (“APA”), declaratory relief,
5
injunctive relief, and due process violations arising out of a
6
BIA decision on the tribal membership and recognized government
7
of the California Valley Miwok Tribe (“Tribe”).
8
Tribe members, including Yakima Dixie, intervened (“intervenor
9
defendants”).
(Docket No. 30.)
Several alleged
Plaintiffs, federal defendants,
10
and intervenor defendants now move for summary judgment.
11
Nos. 44, 46-47.)
12
I.
(Docket
Factual and Procedural Background
13
This action is part of a long-running leadership
14
dispute over the Tribe between the Burley faction and Yakima
15
Dixie that has resulted in actions in state courts, federal
16
courts, and administrative agencies.
17
v. United States, 424 F. Supp. 2d 197 (D.D.C. 2006) [“Miwok I”];
18
Cal. Valley Miwok Tribe v. United States, 515 F.3d 1262 (D.C.
19
Cir. 2008) [“Miwok II”]; Cal. Valley Miwok Tribe v. Jewell, 5 F.
20
Supp. 3d 86 (D.D.C. 2013) [“Miwok III”].
21
federally recognized tribe, formerly known as the “Sheep Ranch
22
Rancheria of Me-Wuk Indians of California.”
23
24
25
26
27
28
See Cal. Valley Miwok Tribe
The Tribe is a
(2015 AR 1397.)2
1
Federal defendants are automatically substituted for
their predecessors pursuant to Federal Rule of Civil Procedure
25(d).
2
Because the administrative decision challenged here is
a reconsideration of a prior 2011 administrative decision
following remand in Miwok III, there are two administrative
records. The court will refer to the 2011 Decision’s
administrative record with the citation (2011 AR XX) and the 2015
2
1
In 1915, John Terrell of the Office of Indian Affairs
2
conducted a census of “Sheepranch Indians” in Calaveras County,
3
California.
4
were thirteen Sheepranch Indians.
5
United States acquired a 0.92 acre parcel of land, known as
6
“Sheep Ranch Rancheria,” for these Indians.
7
(2011 AR 3-5.)
At the time of the census, there
(2011 AR 3.)
In 1916, the
(2011 AR 3-6.)
In 1934, Congress passed the Indian Reorganization Act
8
(“IRA”), which required the BIA to hold elections where a tribe
9
would decide whether to accept provisions of the IRA, including
10
provisions permitting tribes to organize and adopt a
11
constitution.
12
was only one eligible adult Miwok Indian, Jeff Davis, living on
13
the rancheria in 1935.3
14
adopting the IRA but the Tribe never pursued formal organization.
15
(2011 AR 13, 20.)
16
25 U.S.C. §§ 5123, 5125.
The BIA found that there
(2011 AR 13, 20.)
He voted in favor of
Amended in 1964, the California Rancheria Act
17
authorized the termination of federal recognition of California
18
Rancherias by distributing each rancheria’s assets to the Indians
19
residing on the rancheria.
20
that time, Mabel Dixie was the sole Miwok resident on the land.
21
(2011 AR 38.)
22
terminate the trust relationship between the federal government
23
and the Tribe.
24
take the necessary steps to complete the termination of the
25
Decision’s administrative record with the citation (2015 AR XX).
26
27
28
3
(2011 AR 1687; 2015 AR 1399.)
At
She voted to accept the land distribution plan and
(2011 AR 47-51.)
The BIA failed, however, to
The Department of the Interior’s 1935 census found that
the Sheep Ranch Rancheria had an approximate population of
sixteen members, but only Davis lived on the property. (See 2011
AR 2062.)
3
1
rancheria.
2
(2011 AR 83-84.)
Mabel Dixie died in 1971 and an Administrative Law
3
Judge ordered the distribution of her estate.
(2011 AR 61.)
4
common law husband and four sons, including Yakima Dixie,
5
received an undivided interest in the land.
6
Yakima Dixie represented that he was the only living descendant
7
of Mabel and recognized Tribe member.
(Id.)
Her
By 1994,
(2011 AR 82.)
8
A.
Leadership Dispute
9
In 1998, the Burley faction received Dixie’s permission
10
to enroll in the Tribe.
11
the BIA met with Dixie and Burley in order to discuss formal
12
organization of the Tribe.
13
it believed that the original tribal membership was limited to
14
the heirs of Mabel Dixie because of the land distribution during
15
probate.
16
with the addition of the Burley faction.
17
(2011 AR 173.)
(2011 AR 110-14.)
In September 1998,
(2011 AR 172-76.)
The BIA noted that
The Tribe’s membership then expanded
(2011 AR 173.)
In November 1998, the BIA drafted, and Dixie and Burley
18
signed, Resolution #GC-98-01 (“1998 Resolution”).
19
79.)
20
faction as Tribe members.
21
General Council to serve as the governing body of the Tribe.”
22
(2011 AR 178.)
23
tribal chairman to the BIA, but Dixie claimed he did not resign.
24
(2011 AR 180, 1573.)
25
authority as the governing body of the Tribe in February 2000 and
26
continued to recognize the General Council and Burley’s
27
leadership through 2005.
28
(2011 AR 177-
The 1998 Resolution listed Dixie and the four member Burley
(2011 AR 177.)
It also established “a
In 1999, Burley submitted Dixie’s resignation as
The BIA affirmed the General Council’s
(2011 AR 249-54, 2691.)
In February 2004, Burley submitted a tribal
4
1
constitution to the BIA “in an attempt to demonstrated that it is
2
an ‘organized’ Tribe” under the IRA.
3
rejected the constitution because it did not reflect the
4
involvement of “the greater tribal community.”
5
96.)
6
concluded that it did not recognize any tribal government or
7
tribal chairperson for the Tribe.
(2011 AR 1095.)
The BIA
(2011 AR 1095-
The BIA restated this position in February 2005 when it
(2011 AR 610-11.)
8
B.
Miwok I and Miwok II
9
The Burley faction challenged the denial of their
10
proposed constitution.
11
court reasoned that while the Tribe has flexibility in organizing
12
under the IRA, the BIA has an obligation to ensure that governing
13
documents “have been ‘ratified by a majority vote of adult
14
members.’”
15
necessary steps to protect the interests of its potential
16
members,” the court dismissed the complaint.
17
Id. at 202.
Miwok I, 424 F. Supp. 2d at 201.
The
Because the Tribe “failed to take
Id. at 202-03.
The D.C. Circuit affirmed the district court.
Miwok
18
II, 515 F.3d at 1268.
The court reasoned that “tribal
19
organization under the [IRA] must reflect majoritarian values,”
20
the Burley faction admits the Tribe has a potential membership of
21
250, and the proposed constitution did not involve the majority
22
of those members.
Id. at 1267-68.
23
C.
2010 Decision and Miwok III
24
While Miwok II was pending, the BIA met with the
25
parties in order to promote organization under the IRA.
(2011 AR
26
1261.)
27
Council meeting in order to initiate the reorganization process.
28
(Id.)
In November 2006, the BIA published notice of a General
The Burley faction appealed this decision.
5
The Regional
1
Director affirmed the November 2006 notice, reasoning that the
2
purpose of the meeting was to identify the putative group who has
3
a right to participate in the Tribe’s organization.
4
1494-98.)
5
(2011 AR
Burley appealed this decision to the Interior Board of
6
Indian Appeals (“IBIA”), who affirmed, in part, the Regional
7
Director.
8
the April 2007 decision involved an “enrollment dispute.”
9
AR 1703.)
(2011 AR 1502, 1684-705.)
The IBIA also noted that
(2011
Because the IBIA lacks jurisdiction over enrollment
10
disputes, it referred this issue to the Assistant Secretary for
11
Indian Affairs.
12
(Id.)
In August 2011, the Assistant Secretary issued a
13
decision (“2011 Decision”) that was “a 180-degree change of
14
course” from the BIA’s previous position on the Tribe.
15
2049-50.)
16
federally recognized tribe; (2) the Tribe’s citizenship consists
17
solely of Dixie and the Burley faction; (3) the Tribe operates
18
under a General Council government under the 1998 Resolution; (4)
19
the “General Council is vested with the governmental authority of
20
the Tribe”; (5) the Tribe is not organized under the IRA and is
21
not required to organize under it; and (6) the United States
22
cannot treat tribes not organized under the IRA differently than
23
tribes organized under the IRA.
24
challenged this decision in federal district court.
25
(2011 AR
The Assistant Secretary concluded: (1) the Tribe is a
(2011 AR 2049-50.)
Dixie
The district court in Miwok III focused on the Tribe’s
26
citizenship and the recognition of the General Council as the
27
Tribe’s government.
28
held that the 2011 Decision was arbitrary and capricious because
Miwok III, 5 F. Supp. 3d at 96.
6
The court
1
the Assistant Secretary assumed, without explanation, that the
2
Tribe was comprised of only five members and the General Council
3
was the recognized tribal government.
4
was replete with contrary evidence, but the Assistant Secretary
5
“ma[de] no effort to address any of this evidence in the record.”
6
Id. at 98.
7
case to the Assistant Secretary to reconsider the number of
8
tribal members and validity of the General Council.
9
01.
Id. at 97-100.
The record
The court vacated the 2011 Decision and remanded the
Id. at 100-
10
D.
December 2015 Decision
11
The Assistant Secretary issued his December 2015
12
Decision in response to the Miwok III remand.
13
the record and previous federal court decisions, “that the
14
Tribe’s membership is more than five people, and that the 1998
15
General Council does not consist of valid representatives of the
16
Tribe.”
17
Council was a tribal body that could manage the process of
18
reorganizing the Tribe, but the majority of eligible Tribe
19
members did not approve the General Council.
(2015 AR 1402.)
20
He held, based on
He further concluded that the General
(2015 AR 1401.)
Plaintiffs challenged the December 2015 Decision and
21
brought this suit against federal defendants under the APA.
22
court granted intervenor defendants’ Motion to intervene on
23
August 25, 2016.
24
plaintiffs’ Motion to stay enforcement of the December 2015
25
Decision.
26
II.
27
28
(Docket No. 29.)
The
The court previously denied
(Oct. 24, 2016 Order 8:1-4 (Docket No. 37).)
Legal Standard
The APA governs judicial review of administrative
agency actions.
In reviewing the administrative decision, the
7
1
district court “is not required to resolve any facts” that may
2
exist in the underlying administrative record.
3
Co. v. I.N.S., 753 F.2d 766, 769 (9th Cir. 1985).
4
court must “determine whether or not, as a matter of law, the
5
evidence in the administrative record permitted the agency to
6
make the decision it did.”
7
Supp. 2d 830, 838 (E.D. Cal. 2008) (Karlton, J.); see also
8
Occidental Eng’g, 753 F.2d at 769-70.
Occidental Eng’g
Rather, the
Nehemiah Corp. v. Jackson, 546 F.
9
Under the APA, the reviewing court must set aside
10
agency actions that are “arbitrary, capricious, an abuse of
11
discretion, or otherwise not in accordance with law.”
12
706(2)(A).
13
when it “offer[s] an explanation for its decision that runs
14
counter to the evidence before the agency[] or is so implausible
15
that it c[an]not be ascribed to a difference in view or the
16
product of agency expertise.”
17
U.S. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983).
18
“The arbitrary and capricious standard of review is ‘highly
19
deferential; the agency’s decision is entitled to a presumption
20
of regularity, and [the court] may not substitute [its] judgment
21
for that of the agency.’”
22
(9th Cir. 2016) (quoting San Luis & Delta-Mendota Water Auth. v.
23
Jewell, 747 F.3d 581, 601 (9th Cir. 2014)).
24
5 U.S.C. §
An agency acts in an arbitrary and capricious manner
Motor Vehicle Mfrs. Ass’n of the
Aguayo v. Jewell, 827 F.3d 1213, 1226
“Even when an agency explains its decision with ‘less
25
than ideal clarity,’ a reviewing court will not upset the
26
decision on that account ‘if the agency’s path may be reasonably
27
discerned.’”
28
U.S. 461, 497 (2004) (quoting Bowman Transp. Inc. v. Ark.-Best
Ala. Dep’t of Envtl. Conservation v. E.P.A., 540
8
1
Freight Sys., Inc., 419 U.S. 281, 286 (1974)).
2
“sustain an agency action if the agency has articulated a
3
rational connection between the facts found and the conclusions
4
made.”
5
Reclamation, 426 F.3d 1082, 1090 (9th Cir. 2005).
6
III. Supplementing the Administrative Record and Judicial Notice
7
Plaintiffs request that the court take judicial notice
A court will
Pac. Coast Fed’n of Fishermen’s Ass’ns v. U.S. Bureau of
8
of over forty documents, many of which are not part of the
9
administrative record.
(See Docket Nos. 44-3, 45, 48-1.)
10
Plaintiffs filed these requests almost one month after the
11
deadline to file a motion to supplement the administrative
12
record.
13
(See Status Order 2:28-3:1 (Docket No. 41).)
Generally, the reviewing court is limited to the
14
administrative record.
15
F.3d 955, 975 (9th Cir. 2006).
16
of documents in a case where the court is reviewing an agency
17
action, the requesting party must meet one of four exceptions:
18
Great Basin Mine Watch v. Hankins, 456
When asking for judicial notice
22
(1) admission is necessary to determine
whether
the
agency
has
considered
all
relevant factors and has explained its
decision; (2) if the agency has relied on
documents not in the record, (3) when
supplementing the record is necessary to
explain technical terms or complex subject
matter, or (4) when plaintiffs make a showing
of agency bad faith.
23
Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2005); see
24
Rybachek v. E.P.A., 904 F.2d 1276, 1296 n.25 (9th Cir. 1990)
25
(construing a motion for judicial notice as a motion to
26
supplement the record).
19
20
21
27
28
Plaintiffs do not mention these exceptions, let alone
discuss how the supplemented documents qualify under any
9
1
exception.
2
their various arguments.
3
burden to show that the additional materials . . . are necessary
4
to adequately review” the Assistant Secretary’s decision.
5
Fence Creek Cattle Co. v. U.S. Forest Serv., 602 F.3d 1125, 1131
6
(9th Cir. 2010).
7
judicial notice of extra-record materials.
8
IV.
They only argue that these documents are relevant to
Plaintiffs have not “met [their] heavy
See
The court denies plaintiffs’ request for
Discussion
9
The December 2015 Decision reached two conclusions that
10
plaintiffs argue are arbitrary and capricious.
First, membership
11
in the Tribe is not limited to five people.
12
Second, the United States does not recognize a valid government
13
for the Tribe.
(See 2017 AR 1399.)
(See 2017 AR 1401.)
14
A.
Whether Tribe is Made up of More than Five People
15
The December 2015 Decision found that membership in the
16
Tribe is not limited to five people.
17
the Tribe’s membership consists of:
18
(2015 AR 1399.)
Instead,
(1) the individuals listed on the 1915
Terrell Census and their descendants; (2) the
descendants of Rancheria resident Jeff Davis
(who was the only person on the 1935 IRA
voters list for the Rancheria); and (3) the
heirs of Mabel Dixie (the sole Indian
resident of the Rancheria eligible to vote on
its termination in 1967).
19
20
21
22
23
(2015 AR 1400.)4
24
on: (1) the Miwok I and Miwok II decisions that held the Tribe
25
consisted of more than five people; (2) the Miwok III conclusion
26
that “the record is replete with evidence that the Tribe’s
27
28
4
The Assistant Secretary based this conclusion
The December 2015 Decision refers to these categories
of members as the “Eligible Groups.”
10
1
membership is potentially significantly larger than just the[]
2
five individuals”; and (3) the meaning of the term “rancheria”
3
and the Department of Interior’s treatment of the California
4
Rancherias.
5
administrative record does not support this conclusion.
6
(2015 AR 1399-400.)
Plaintiffs argue that the
Federal defendants argue that preclusion prevents
7
plaintiffs from now attempting to re-litigate the issue of Tribe
8
members because this issue was resolved in a prior proceeding.
9
prior court decision will have preclusive effect under the
10
A
doctrine of issue preclusion where:
11
(1) the issue necessarily decided at the
previous proceeding is identical to the one
which is sought to be relitigated; (2) the
first proceeding ended with a final judgment
on the merits; and (3) the party against whom
collateral estoppel is asserted was a party
or in privity with a party at the first
proceeding.
12
13
14
15
16
Hydranautics v. FilmTec Corp., 204 F.3d 880, 885 (9th Cir. 2000)
17
(quoting Younan v. Caruso, 51 Cal. App. 4th 401, 406-07 (2d Dist.
18
1996)).
19
showing what the prior judgment determined.
20
of collateral estoppel cannot apply when the party against whom
21
the earlier decision is asserted did not have a ‘full and fair
22
opportunity’ to litigate that issue in the earlier case.”
23
v. McCurry, 449 U.S. 90, 95 (1980) (quoting Montana v. United
24
States, 440 U.S. 147, 153 (1979)).
“[T]he concept
three members constituted a majority of the Tribe.5
27
28
Id.
Allen
First, Miwok I and Miwok II necessarily decided whether
25
26
The party asserting issue preclusion bears the burden of
5
III.
Miwok I and
The issue here is not identical to the issue in Miwok
Miwok III did not determine the number of tribal members;
11
1
Miwok II affirmed the Secretary’s decision not to approve a
2
proposed tribal constitution submitted by the Burley faction.
3
See Miwok II, 515 F.3d at 1263.
4
approved the proposed constitution they submitted.
5
The courts held that the three Burley members who approved the
6
constitution did not constitute a majority of the Tribe, and
7
therefore, their proposed constitution was an “antimajoritarian
8
gambit [that] deserve[d] no stamp of approval from the
9
Secretary.”6
Id. at 1267.
Only three Burley members
Id. at 1266.
Because the Burley faction did not
10
represent “anything close to a majority of the [T]ribe,” the
11
courts in Miwok I and Miwok II denied the Burley faction’s
12
proposed constitution.
13
Id.
The issue here is whether the Tribe consists of more
14
than five members--the four Burley members plus Dixie.
15
I and Miwok II determination that the three Burley members were
16
not a majority of the Tribe necessarily means that the Tribe must
17
also consist of more than five members, which is the challenged
18
issue here.
19
The Miwok
Plaintiffs, relying on Miwok III dicta, argue the issue
20
here is different than in Miwok I and Miwok II because the issue
21
there “was whether the Secretary had the authority to refuse to
22
approve a constitution submitted under IRA § 476(h)(1).”
See
23
24
25
26
27
28
it found that the Assistant Secretary was arbitrary and
capricious for failing to address any evidence regarding tribal
membership size. See Miwok III, 5 F. Supp. 3d at 98-99.
6
The Miwok II court also took judicial notice of the
fact that the Burley faction alleged in another action that the
Tribe has a potential membership of 250. Miwok II, 515 F.3d at
1265 n.5; (see 2011 AR 299.)
12
1
Miwok III, 5 F. Supp. 3d at 101 n.15.
2
Miwok III stated that Miwok I and Miwok II did not address
3
whether the Tribe’s membership consists of five members.
4
is, however, an inaccurate and incomplete characterization of
5
Miwok I and Miwok II.
6
The court recognizes that
This
Miwok I and Miwok II decided that the Secretary had the
7
authority to deny the proposed constitution because the
8
constitution did “not enjoy sufficient support from [the T]ribe’s
9
membership” and it was only approved by “Burley and her small
10
group of supporters.”
11
Burley members did not constitute a majority of the Tribe, the
12
Tribe must necessarily consist of more than five individuals.
13
Thus, Miwok I and Miwok II did decide the issue of whether the
14
Tribe consists of more than five members when denying a proposed
15
constitution approved by only three Burley members.
16
Miwok II, 515 F.3d at 1267. If the three
Second, the prior proceeding ended with a final
17
judgment on the merits.
18
dismissal of the Burley faction’s complaint for failure to state
19
a claim upon which relief could be granted.
20
Supp. 2d at 197.
21
did, appeal the Miwok I decision, which resulted in the Miwok II
22
decision.
23
not have a ‘full and fair opportunity’ to litigate” this issue in
24
Miwok I or Miwok II.
25
The prior proceeding resulted in a
Miwok I, 424 F.
The Burley faction had the opportunity to, and
There is no indication that the Burley faction “did
See Allen, 449 U.S. at 95.
Third, the party against whom preclusion is asserted
26
was a party at the first proceeding.
27
suit on behalf of the Tribe in Miwok I and Miwok II.
28
group that defendants argue are precluded from litigating the
13
The Burley faction brought
This is the
1
issue of tribal membership here.
2
Issue preclusion prevents plaintiffs from relitigating
3
whether the Tribe consists of more than five members.7
4
Accordingly, the December 2015 Decision was not arbitrary and
5
capricious on this basis.
6
B.
Whether United States Recognizes Tribal Leadership
7
The December 2015 Decision found that the United States
8
does not recognize any leadership for the Tribe, including the
9
General Council established by the 1998 Resolution.
(2015 AR
10
1401.)
11
noted that he “must ensure that [tribal] leadership consists of
12
valid representatives of the Tribe as a whole,” which requires “a
13
process open to the whole tribal community.”
14
Burley nor Dixie established that a majority of eligible Tribe
15
members ratified their form of tribal government, however.8
16
(2015 AR 1401-02.)
17
States does not recognize a tribal government is reasonable in
18
light of the facts contained in the administrative record.
19
In reaching this conclusion, the Assistant Secretary
(Id.)
Neither
The December 2015 Decision’s that the United
The federal government has a “distinctive obligation of
20
trust” in its dealings with Indians.
21
Jicarilla Apache Nation, 564 U.S. 162, 192 (2011).
22
this obligation, the Assistant Secretary must ensure that the
23
24
25
26
27
28
See, e.g., United States v.
As part of
7
Federal defendants also argue that claim preclusion
prevents challenging the entire decision. Claim preclusion does
not apply because the claim litigated in this action is whether
the December 2015 Decision was arbitrary and capricious. This
was not a claim that the parties could have previously litigated
because all other cases preceded the December 2015 Decision.
8
The Burley faction is the only party that challenges
this conclusion.
14
1
United States is conducting government-to-government relations
2
with “valid representatives of the [tribe] as a whole.”
3
Nation of Okla. v. Norton, 223 F. Supp. 2d 122, 140 (D.D.C.
4
2002); see Aguayo v. Jewell, 827 F.3d 1213, 1224 (9th Cir. 2016)
5
(“The [Assistant] Secretary properly exercises discretion not to
6
approve a governing document when it does not ‘reflect the
7
involvement of the whole tribal community.’”); cf. Seminole
8
Nation v. United States, 316 U.S. 286, 296-97 (1942) (“Payment of
9
funds at the request of a tribal council which . . . was composed
10
of representative faithless to their own people . . . would be a
11
clear breach of the Government’s fiduciary obligation.”).
12
Seminole
As previously discussed, other federal court decisions
13
have held that the Tribe consists of more than five people.
(See
14
2017 AR 1401.)
15
the 1998 Resolution that established the General Council.9
16
AR 179.)
17
“a majority of those eligible to take part in a reorganization of
18
the Tribe.”
19
that the majority of adult members approved the General Council
20
and the Assistant Secretary has an obligation to ensure that the
21
United States interacts with valid tribal representatives, the
22
Assistant Secretary was not arbitrary and capricious in declining
23
to recognize a tribal government.
Only two individuals, Dixie and Burley, approved
(2011
Plaintiffs cannot show that these two individuals were
(2017 AR 1401.)
Because plaintiffs have not shown
24
Plaintiffs argue that, consistent with BIA policy, a
25
majority of Tribe members approved the 1998 Resolution because
26
27
28
9
Reznor was an adult at the enactment of the 1998
Resolution, but did not sign it. (See 2011 AR 179.)
15
1
only Dixie and the Burley faction were eligible to form a tribal
2
government.
3
original eligible Tribe member because he resided on the
4
rancheria, until he adopted the Burley faction into the Tribe.
5
This argument is flawed for several reasons.
6
Under plaintiffs’ argument, Dixie was the only
First, “[a]n Indian tribe has the power to define
7
membership as it chooses.”
Williams v. Gover, 490 F.3d 785, 789
8
(9th Cir. 2007).
9
define its own membership, it is unclear how the BIA could have
“[G]iven a tribe’s sovereign authority to
10
any [] policy” limiting original tribal membership to those
11
residing on the land.
12
See id. at 791.
Second, residence on the rancheria was a membership
13
requirement only for rancherias restored under the Hardwick
14
settlement.
15
restore illegally terminated rancherias and defined original
16
membership on the restored rancherias as those listed on the
17
“distribution plans,” who were the individuals who lived on the
18
land at the time of termination.
19
Sacramento Area Director, 33 IBIA 55, 57 (1998).
20
is inapplicable in this case because the Tribe was never
21
terminated.
22
In those instances, the United States agreed to
See Alan-Wilson v. Acting
That approach
Third, the BIA has previously treated lineal
23
descendants of individuals listed on census base rolls as the
24
eligible members for organizational purposes.
25
Memorandum (Docket No. 50-2) (declining “to decide who are the
26
current citizens of the [Tejon Indian] Tribe,” but noting that
27
the tribe’s citizens are those who “were enumerated on and are
28
descended from the 1915 Terrell BIA Census”)); Alan-Wilson v.
16
(See Apr. 24, 2012
1
Bureau of Indian Affairs, 30 IBIA 241, 249-50 (1997)
2
(“Unorganized Federally recognized tribes would look to
3
historical records and rolls to determine recognized membership
4
for organizational purposes.”); cf. Lewis v. Norton, 424 F.3d
5
959, 960-61 (9th Cir. 2005) (noting that a tribe’s governing
6
documents defined membership as all lineal descendants of persons
7
named on base rolls with a certain percentage of “Indian blood”).
8
The December 2015 Decision applies the same approach.
9
Plaintiffs also argue that Dixie’s challenge to the
10
1998 Resolution in Miwok III was time-barred and therefore the
11
December 2015 Decision resulting from the Miwok III remand is
12
based on a time-barred claim.
13
civil action commenced against the United States shall be barred
14
unless the complaint is filed within six years after the right of
15
action first accrues.”
16
right of action generally accrues at the time the agency action
17
becomes final.”
18
Under 28 U.S.C. § 2401(a), “every
When challenging an agency action, “[t]he
Aguayo, 827 F.3d at 1226.
Even if Dixie’s claim was time-barred, this does not
19
deprive the Assistant Secretary of his obligation to ensure the
20
United States interacts with a majoritarian government.
21
cornerstone of this obligation is to promote a tribe’s political
22
integrity, which includes ensuring that the will of tribal
23
members is not thwarted by rogue leaders . . . .”
24
F.3d at 1267; see also Seminole Nation, 223 F. Supp. 2d at 140
25
(“[T]he [BIA] has the authority and responsibility to ensure that
26
the [tribe]’s representatives, with whom it must conduct
27
government-to-government relations, are the valid representatives
28
of the [tribe] as a whole.”); cf. 25 U.S.C. § 2.
17
“A
Miwok II, 515
1
The Assistant Secretary was fulfilling his obligation
2
to “ensure that [tribal] leadership consists of valid
3
representatives of the Tribe as a whole” in the December 2015
4
Decision.
5
to ensure that the United States is interacting with valid tribal
6
representatives was the basis for the December 2015 Decision, not
7
a time-barred claim.10
8
9
(2015 AR 1401.)
The Assistant Secretary’s obligation
Plaintiffs also argue that because the purpose of the
General Council is to serve as the governing body of the Tribe
10
and the BIA once recognized the General Council, the BIA must now
11
recognize the General Council as the valid tribal government.
12
(See 2011 AR 177-78.)
13
Council is not dispositive as to whether the United States must
14
recognize it as the valid tribal government.
15
Nation, 223 F. Supp. 2d at 140.
16
once recognized the General Council does not preclude the BIA
17
from later questioning its legitimacy.
18
Television Stations, Inc., 556 U.S. 502, 514-15 (2009) (holding
19
“agency action representing a policy change” is not subject to a
20
heightened standard than agency action adopting a policy in the
21
first place).
22
obligation of trust’ the federal government must employ when
23
dealing with Indian Tribes.”
24
25
26
27
28
First, the stated purpose of General
See Seminole
Second, the fact that the BIA
Cf. F.C.C. v. Fox
Doing so “is not consistent with the ‘distinctive
Miwok III, 5 F. Supp. 3d at 100.
In light of the record, the court finds that the
Assistant Secretary was not arbitrary and capricious in finding
10
Further, the statute of limitations applies to “civil
action[s] commenced against the United States”; it does not bar
an administrative official from considering an issue in an
administrative proceeding. See 28 U.S.C. § 2401(a).
18
1
that the 1998 Resolution and General Council did not
2
“sufficiently reflect[] the will of the [Tribe] in order to
3
warrant the acknowledgement of the federal government.”
4
Aguayo, 827 F.3d at 1228 (holding the Assistant Secretary was not
5
arbitrary and capricious in accepting a tribal constitution where
6
it reflected the will of the tribe).
7
Cf.
Plaintiffs have failed to show how the Assistant
8
Secretary was arbitrary and capricious in issuing the December
9
2015 Decision.11
Because plaintiffs cannot show that the
10
Assistant Secretary was arbitrary and capricious, plaintiffs’
11
claims must fail.
12
Motions for summary judgment and deny plaintiffs’ Motion for
13
summary judgment.
14
Accordingly, the court must grant defendants’
IT IS THEREFORE ORDERED that plaintiffs’ Motion for
15
summary judgment (Docket No. 44) be, and the same hereby is,
16
DENIED; and
17
IT IS FURTHER ORDERED that defendants’ Motions for
18
summary judgment (Docket Nos. 46, 47) be, and the same hereby
19
are, GRANTED.
20
Dated:
May 31, 2017
21
22
23
24
11
25
26
27
28
Plaintiffs devote substantial time arguing that Dixie
and a non-party to this suit, Chadd Everone, committed fraud upon
the court and falsely created the tribal leadership dispute.
This issue is not relevant to whether the December 2015 Decision
was arbitrary and capricious. The December 2015 Decision did not
turn on whether Dixie or Burley was the leader of the Tribe, and
it found that neither Dixie nor Burley was the recognized leader.
19
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?