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