Alturas Indian Rancheria v. David Bernhardt ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 25 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALTURAS INDIAN RANCHERIA; No. 19-16885
WENDY DEL ROSA,
D.C. No.
Plaintiffs-Appellants, 2:17-cv-01750-TLN-DMC
v.
MEMORANDUM*
DAVID BERNHARDT, Secretary of the
United States Department of the Interior;
AMY DUTSCHKE, Pacific Regional
Director, Bureau of Indian Affairs; VIRGIL
AKINS, Northern California Agency
Superintendent, Indian Affairs; UNITED
STATES OF AMERICA,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Argued and Submitted December 8, 2022
San Francisco, California
Before: NGUYEN and SANCHEZ, Circuit Judges, and BOUGH,** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri, sitting by designation.
Plaintiff Wendy Del Rosa, purporting to represent the federally recognized
Alturas Indian Rancheria tribe (“Tribe”) and herself (collectively, “plaintiffs”),
filed a complaint for declaratory and injunctive relief against members of the
Department of the Interior (“DOI”). During intratribal disputes regarding
governance and membership, DOI chose to recognize the last undisputed
governing body of the Tribe in 2012, which consisted of Wendy Del Rosa, Darren
Rose, and Phillip Del Rosa, for purposes of maintaining government-to-
government relations in contracting with the Tribe. Plaintiff Wendy Del Rosa,
who is part of one tribal faction, asks the court to order DOI to recognize a 2013
decision by the Tribe’s governing body removing Phillip Del Rosa, who is part of
the other faction, from holding voting and leadership positions in the Tribe. The
2013 decision was subsequently reversed by a different tribal governing body in
2014 led by the Phillip Del Rosa–Darren Rose tribal faction.
The district court found it lacked jurisdiction because adjudicating this case
would necessitate engaging in the intratribal faction dispute and essentially
choosing sides among the factions. We review a district court’s dismissal for lack
of subject matter jurisdiction de novo. Vaz v. Neal, 33 F.4th 1131, 1135 (9th Cir.
2022). We affirm.
“[T]he Supreme Court has uniformly recognized that one of the fundamental
aspects of tribal existence is the right to self-government.” Wheeler v. U.S. Dep’t
2
of Interior, Bureau of Indian Affs., 811 F.2d 549, 551 (10th Cir. 1987). The federal
government and federal courts have also encouraged tribal self-governance, and
“[federal courts] have stated that when a dispute is an intratribal matter, the Federal
Government should not interfere.” Id. Additionally, “[a] tribe’s right to define its
own membership for tribal purposes has long been recognized as central to its
existence as an independent political community,” Santa Clara Pueblo v. Martinez,
436 U.S. 49, 72 n.32 (1978), thus placing “issues of tribal membership . . .
generally beyond our review.” Cahto Tribe of Laytonville Rancheria v. Dutschke,
715 F.3d 1225, 1226 (9th Cir. 2013). Claims are therefore nonjusticiable where
litigants seek “a form of relief that the federal courts cannot provide, namely, the
resolution of the internal tribal leadership dispute.” In re Sac & Fox Tribe of
Mississippi in Iowa/Meskwaki Casino Litig., 340 F.3d 749, 763 (8th Cir. 2003).
Although DOI may sometimes need to determine what tribal government to
recognize in order to interact and contract with tribal governments, “even these
special situations should be resolved in favor of tribal self-determination and
against Federal Government interference.” Wheeler, 811 F.2d at 552; see also
White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143–44 (1980)
(“Ambiguities in federal law have been construed generously in order to comport
with these traditional notions of sovereignty and with the federal policy of
encouraging tribal independence.”).
3
Plaintiffs argue that deciding whether to order DOI to recognize the tribal
judgment removing Phillip Del Rosa from leadership would not require the court
to choose between the factions or delve into intratribal leadership and membership
disputes. This argument ignores that to decide whether to recognize the tribal
judgment removing Phillip Del Rosa from leadership, the court would have to
decide whether it was issued by a legitimate governing body of the Tribe.
Plaintiffs’ argument that deciding this issue would not require the court to wade
into intratribal leadership and membership disputes is also in tension with Wendy
Del Rosa’s arguments before the Interior Board of Indian Appeals that Darren
Rose was not a valid member of the Tribe. Against the backdrop of these
intratribal governance and membership disputes, the district court correctly found
that it lacked subject matter jurisdiction over plaintiffs’ claims.1
AFFIRMED.
1
DOI acknowledges that this court may exercise jurisdiction over a properly pled
claim under the Administrative Procedure Act (“APA”). Our precedent recognizes
that federal courts have jurisdiction to review final agency actions—even when
such review implicates issues of tribal law. See, e.g., Aguayo v. Jewell, 827 F.3d
1213, 1223 (9th Cir. 2016); Alto v. Black, 738 F.3d 1111, 1124 (9th Cir. 2013).
DOI’s decision to recognize a governing tribal body is reviewable as a final agency
action under the APA. See Goodface v. Grassrope, 708 F.2d 335, 338 (8th Cir.
1983). Although plaintiffs invoke the APA, their claim does not seek review of the
agency’s recognition decision. Plaintiffs instead ask the court to declare that a
2013 tribal decision removing Phillip Del Rosa holds greater authority than a 2014
tribal decision reinstating him. For the reasons explained, such a claim is not
cognizable.
4