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.)

Download PDF
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?