Andrew Allen v. United States ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 31 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDREW ALLEN; et al., No. 17-17463
Plaintiffs-Appellants, D.C. No. 3:16-cv-04403-WHA
v.
MEMORANDUM*
UNITED STATES OF AMERICA; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Argued and Submitted November 13, 2019
San Francisco, California
Before: W. FLETCHER and BADE, Circuit Judges, and MOSKOWITZ,** District
Judge.
Plaintiffs-Appellants, a group of eighteen “persons of one half or more Indian
blood,” appeal from the district court’s entry of summary judgment in favor of
Defendants-Appellees the United States of America, Sally Jewell, and Amy
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Barry Ted Moskowitz, United States District Judge for
the Southern District of California, sitting by designation.
Dutschke (collectively, “Appellees”) in an action challenging a decision by the U.S.
Department of the Interior (“Interior”) that Appellants are ineligible to organize as a
“tribe” under the Indian Reorganization Act (“IRA”) and its implementing
regulations. Appellants argue that Interior violated the Administrative Procedure
Act (“APA”) by denying their request to organize as a tribe. We have jurisdiction
pursuant to 28 U.S.C. § 1291 and affirm.
We review de novo a summary judgment decision, “thus reviewing directly
the agency’s action under the [APA’s] arbitrary and capricious standard.” Alaska
Wilderness League v. Jewell, 788 F.3d 1212, 1217 (9th Cir. 2015) (citation and
internal quotation marks omitted).1 Under this standard, we determine whether
Interior “relied on” improper factors, “entirely failed” to review an important issue,
failed to align its decision with the evidence, or “is so implausible that it could not
be ascribed to a difference in view or the product of agency expertise.” See Motor
Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983). We review Interior’s factual findings for substantial evidence. See San Luis
& Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014).
1
We reject Appellants’ arguments that the Indian law canon of construction and
“highest fiduciary standards” apply to this appeal. In their settlement agreement, the
parties agreed that any dispute about Interior’s decision would be brought pursuant
to the APA and that the Indian law canon of construction would not apply. The
canon also does not apply because not all tribal interests are aligned. See Redding
Rancheria v. Jewell, 776 F.3d 706, 713 (9th Cir. 2015).
2
I.
This case arises from a settlement agreement prescribing an administrative
process for Appellants to apply to the Bureau of Indian Affairs (“BIA”) for a
determination of whether they are eligible to organize as a tribe. To be considered
a tribe, the settlement agreement required Appellants to satisfy criteria set forth in
25 U.S.C. § 5129 (formerly 25 U.S.C. § 479) and 25 C.F.R. § 81.1(w)(2) (2014).
These provisions define a “tribe” as “any Indian tribe, organized band, pueblo, or
the Indians residing on one reservation,” 25 U.S.C. § 5129, and “any group of
Indians whose members each have at least one-half degree of Indian blood for whom
a reservation is established and who each reside on that reservation,” 25 C.F.R.
§ 81.1(w)(2) (2014). The regulation further provides that “[s]uch tribes may consist
of any consolidation of one or more tribes or parts of tribes.” Id.Appellants timely submitted information to Interior, claiming eligibility to
organize as the Ukiah Valley Pomo Indians. During its investigation, BIA published
notices soliciting public comments, mailed letters to residents of the Pinoleville
Rancheria (the “Rancheria”), and engaged in extensive communications with the
Pinoleville Pomo Nation (the “Nation”), a federally recognized tribe, regarding
Appellants and their request to organize.
After considering the record, Interior issued a reasoned, written decision
concluding that Appellants are ineligible to organize as a tribe. We hold that
3
Interior’s determination does not violate the APA and that substantial evidence
supports its factual findings.
II.
Appellants’ principal dispute is that despite recognizing that Appellants
possess one-half or more Indian blood and reside on the Rancheria, Interior
determined that they cannot organize as a tribe because they are “only a subset of
the Indians for whom the Pinoleville Rancheria was set aside.” Most problematic,
in Appellants’ view, is Interior’s further statement that it “does not interpret the
Indian Reorganization Act as permitting splinter groups or factions of a tribe to set
up independent tribal government.” Appellants contend that Interior improperly
considered a factor from the federal acknowledgment regulations that goes beyond
the criteria set forth in 25 U.S.C. § 5129 and 25 C.F.R. § 81.1(w)(2).
We disagree. By referencing the term “splinter group,” Interior did not
consider additional criteria, nor did it cite or reference the acknowledgement
regulations. Interior’s use of the phrase “splinter group” merely supported its factual
finding that Appellants were “only a subset” of the Indians for whom the Rancheria
was set aside. And nothing in the settlement agreement prohibited Interior from
considering prior decisions that inform its interpretation of the statutory and
regulatory criteria.
Moreover, substantial evidence supports Interior’s conclusion that Appellants
4
are a “subset” of the Indians for whom the Rancheria was set aside. Specifically,
the record reflects that the Rancheria was set aside for a particular group of Indians
in 1911, that Appellants descend from some members of that original group of
Indians, that Appellants (and their ancestors) participated in the Nation’s extended
efforts to organize as a tribe, and that Appellants (and their ancestors) participated
in management of the Rancheria during the last century.
Additionally, the Nation made repeated representations to Interior that
Appellants are enrolled members in the Nation. We consider this the most
significant evidence supporting Interior’s conclusion that Appellants constitute a
subset of the Indians for whom the Rancheria was set aside. Due to the importance
of those representations to Interior (and to this court), we recount them here.
On November 9, 2015, Interior released a “Verified Members List” for the
putative Ukiah Valley Pomo Indians, including the names of Appellants. Soon
thereafter, Interior met with senior officials of the Nation to discuss the Nation’s
concerns about the Verified Members List. In that meeting, the Nation’s
Chairwoman, Leona Williams, informed Interior that the Nation allowed Appellants
to participate in tribal activities and had never issued them disenrollment letters.
On December 4, 2015, Williams sent a letter to Interior following up on the
meeting. That letter stated that sixteen of the eighteen Appellants (all but Andrew
Allen and Allan Crabtree) were listed on the 2003 Pinoleville Voter Membership
5
List, had not been disenrolled, and were therefore “eligible to vote as members of
the Pinoleville Pomo Nation.” The letter continued: “That very same Voter
Membership list, created with the assistance of the Bureau in 2003, including the
sixteen Verified Members, is used today to effectuate voting and membership of the
Tribe. The sixteen Verified Members have not exercised their voting rights since
2005, however, they have been listed eligible to vote as members.” The letter also
stated, however, that the Tribal Council had not conducted any audit of the Voter
Membership List or verified the membership of any specific individual.
Interior contacted the Nation to clarify Appellants’ membership status
because of the Nation’s statement that it had not investigated the membership status
of any individual. In that communication, Interior advised the Nation that
determining whether Appellants were members of the Nation was “imperative” to
its decision-making process.
In a February 12, 2016 telephone call, Williams informed Interior that the
Nation recognized Appellants as tribal members and disputed their claims that they
had been disenrolled. Over the next several days, Williams continued to
communicate with Interior regarding what documentation should be submitted to
demonstrate Appellants’ membership in the Nation.
On February 22, 2016, Williams sent a letter to Interior containing a sworn
and notarized declaration incorporating twenty-eight documents intended to provide
6
“clarification of the membership status of the plaintiffs in Donald Allen, et al. v.
United States, Department of Interior.” In that declaration, Williams wrote that her
statement in an earlier letter that Appellants “have not applied for Pinoleville
citizenship and are thus not Pinoleville citizens” was “made by mistake.”2 Among
the documents incorporated into the declaration were two Pinoleville Tribal Council
resolutions, passed February 17, 2016, and February 19, 2016, declaring: “Based on
the Tribe’s Laws the ‘verified Members List’ on November 9, 2015 that (16) out of
(18) are members of the Pinoleville Pomo Tribe.” Those resolutions also called for
“the 16 tribal members” to be charged with federal crimes for representing to Interior
that they were “not members of any tribe.”
Under the lenient substantial evidence standard, a “reasonable mind” could
accept the foregoing evidence as “adequate to support [the] conclusion” that the
Rancheria was set aside for an identifiable group of Indians of which Appellants are
a subset. See San Luis & Delta-Mendota Water Auth., 747 F.3d at 601 (quotation
marks and citation omitted).
III.
2
The earlier letter, dated July 8, 2015, is also in the record. In it, Williams wrote
that Appellants “have not applied for Pinoleville citizenship and are thus not
Pinoleville citizens.” According to that letter, because Appellants were not lineal
descendants of the original Pinoleville Indians, they would have to apply for
naturalization, which “could be possible.” Nevertheless, in her February 22, 2016
declaration, Williams renounced those statements under “penalty of perjury.”
7
We also reject Appellants’ argument that even if they are a subset of the
Indians for whom the land was set aside, they can still organize as a tribe because
they are “among” the Indians for whom the land was set aside and constitute a
majority of individuals containing one-half or more Indian blood on the Rancheria.
“Tribe” is defined as, inter alia, “the Indians residing on one reservation,” 25 U.S.C.
§ 5129 (emphasis added), and a group of Indians “for whom a reservation is
established,” 25 C.F.R. § 81.1(w)(2) (2014). The statute’s use of the word “the”
shows that “Indians” is meant to refer to all or, at a minimum, a significant portion
of the Indians who live on the reservation and for whom the reservation was
established. See, e.g., Hernandez v. Williams, Zinman & Parham PC, 829 F.3d
1068, 1074 (9th Cir. 2016) (“[T]he definite article ‘the’ ‘particularizes the subject
spoken of,’ suggesting that Congress meant to refer to a single object.” (citation
omitted)); Onink v. Cardelucci (In re Cardelucci), 285 F.3d 1231, 1234 (9th Cir.
2002).
Unlike other instances where a reservation was set aside specifically for
multiple, distinct tribes, see Shoshone Tribe v. United States, 299 U.S. 476, 485–86
(1937), Appellants fail to establish that the Rancheria was set aside for their group
(the majority of whom are enrolled members in the Nation) in addition to the Nation.
IV.
Finally, we reject Appellants’ arguments that Interior failed to follow the
8
APA’s notice-and-comment rulemaking process and that Appellees fraudulently
induced them to enter into the settlement agreement. Interior did not need to follow
the APA’s rulemaking procedures because it merely adjudicated Appellants’
application and did not announce any new standard of general applicability and
future effect. See 5 U.S.C. § 551(4). We disagree with Appellants’ contention that
Interior adopted new eligibility criteria or a “one-tribe-per-reservation” rule. See
Int’l Internship Prog. v. Napolitano, 718 F.3d 986, 988 (D.C. Cir. 2013). And
Appellants fail to explain how the alleged fraudulent inducement, even if true,
changes the outcome of this appeal.
In sum, Interior “articulate[d] a satisfactory explanation for its action
including a rational connection between the facts found and the choice made,” State
Farm, 463 U.S. at 43 (internal quotation marks omitted), and we will not disturb its
decision.3
AFFIRMED.
3
We need not address Appellants’ arguments regarding the level of deference, if
any, to afford Interior’s decision because even absent deference, Appellants fail to
establish that the decision violated the APA.
9