Cahto Tribe of the Laytonville Rancheria v. Dutschke , 715 F.3d 1225 ( 2013 )


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  •                       FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    CAHTO TRIBE OF THE LAYTONVILLE                      No. 11-17847
    RANCHERIA ,
    Plaintiff-Appellant,                  D.C. No.
    2:10-cv-01306-
    v.                              GEB-GGH
    AMY DUTSCHKE , Regional Director
    for the Pacific Region, Bureau of                     OPINION
    Indian Affairs, United States
    Department of the Interior;
    KENNETH LEE SALAZAR, Secretary
    of the Interior, United States
    Department of the Interior; KEVIN K.
    WASHBURN ,* Assistant Secretary for
    Indian Affairs, United States
    Department of the Interior,
    Defendants-Appellees.
    Appeal from the United States District Court
    for the Eastern District of California
    Garland E. Burrell, Jr., Senior District Judge, Presiding
    Argued and Submitted
    December 5, 2012—San Francisco, California
    *
    Kevin K. W ashburn is substituted for his predecessor, Larry Echo
    Hawk, as Assistant Secretary for Indian Affairs, United States Department
    of Interior, pursuant to Fed. R. App. P. 43(c)(2).
    2                  CAHTO TRIBE V . DUTSCHKE
    Filed May 15, 2013
    Before: Alex Kozinski, Chief Judge, Michael Daly
    Hawkins and Mary H. Murguia, Circuit Judges.
    Opinion by Judge Hawkins
    SUMMARY**
    Tribal Law
    The panel reversed the district court’s judgment affirming
    the federal Bureau of Indian Affairs’ decision in favor of
    federal defendants in an action brought by the Cahto Tribe of
    the Laytonville Rancheria, seeking to set aside the Bureau of
    Indian Affairs’ decision to direct the Tribe to place the names
    of certain disenrolled individuals back on its membership
    rolls.
    The panel held that the Tribe’s governing documents did
    not provide for an appeal to the Bureau of Indian Affairs of
    the Tribe’s disenrollment action.
    **
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    CAHTO TRIBE V . DUTSCHKE                         3
    COUNSEL
    Colin C. Hampson (argued), Sonosky, Chambers, Sachse,
    Endreson & Perry, LLP, San Diego, California; and Reid
    Peyton Chambers, Sonosky, Chambers, Sachse, Endreson &
    Perry, LLP, Washington, D.C., for Plaintiff-Appellant.
    Elizabeth Ann Peterson (argued), Attorney, Robert G. Dreher,
    Acting Assistant Attorney General, and William B. Lazarus
    and Barbara M.R. Marvin, Attorneys, Environment & Natural
    Resource Division, United States Department of Justice,
    Washington, D.C., for Defendants-Appellees.
    Zuzana S. Ikels (argued), Coblentz, Patch, Duffy & Bass,
    LLP, San Francisco, California, for Amicus Curiae The Sloan
    Family.
    OPINION
    HAWKINS, Senior Circuit Judge:
    This case touches on critical and sensitive issues of tribal
    membership that are generally beyond our review because
    “[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). This matter comes
    to us under the Administrative Procedure Act (“APA”). The
    Cahto Tribe of the Laytonville Rancheria (“Tribe” or “Cahto
    Tribe”)1 seeks to set aside a decision of the Bureau of Indian
    1
    The Cahto Tribe is a federally recognized Indian tribe located in
    Northern California.
    4                   CAHTO TRIBE V . DUTSCHKE
    Affairs (“BIA”) directing the Tribe to place the names of
    certain disenrolled individuals back on its membership roll.
    The BIA issued its decision pursuant to regulations providing
    for administrative review of adverse tribal enrollment actions
    where, as the BIA believed in this case, a tribe has authorized
    such review. See 
    25 C.F.R. § 62.4
    .
    The Cahto Tribe is a small tribe, with less than 100 voting
    members; twenty-two of them will remain disenrolled if the
    Tribe’s decision stands. We pass no judgment on the
    disenrollment and decide only whether the district court was
    correct in affirming the BIA’s decision under the APA.
    Ultimately, resolution of this case requires us to determine
    only a very narrow issue: whether the Tribe’s governing
    documents provide for an appeal to the BIA of its
    disenrollment action. Because we determine that they do not,
    we reverse.2
    I.
    This case arises from the Cahto Tribe General Council’s
    September 19, 1995 vote to remove twenty-two members
    from the tribal membership roll.3 The decision was
    ostensibly made on the basis of a determination that each of
    the individuals “ha[d] been affiliated with other tribes by
    being included on formal membership rolls and/or [had] been
    a distributee of a reservation distribution plan, namely the
    2
    A separate Memorandum disposition filed concurrently with this
    Opinion addresses a related intervention issue raised in Cahto Tribe of the
    Laytonville Rancheria v. Sloan, No. 11-15104.
    3
    This disenrollment was purportedly confirmed in 1999 by a tribal
    resolution that “substantiat[ed]” the removal.
    CAHTO TRIBE V . DUTSCHKE                              5
    Hoopa[-] Yurok settlement,” in violation of tribal
    membership requirements in the Tribe’s Articles of
    Association (“Articles”).4
    Shortly after the initial disenrollment, the Tribe’s attorney
    wrote to the BIA Superintendent (“Superintendent”),
    requesting the Superintendent to “honor the action taken by
    the Tribe and . . . recognize the existing tribal leaders.” The
    Superintendent responded, noting that the matter was internal
    and should be referred to the Tribe’s Executive Committee.
    The BIA reacted similarly to inquiries from disenrolled
    members. In 1999, one of the disenrolled members, Gene
    Sloan, specifically requested an appeal of the disenrollment
    on behalf of himself and the other disenrolled members, his
    family (“the Sloans”), directing his appeal requests to the BIA
    Regional Director (“Regional Director”) and to the
    Superintendent. The record does not indicate that the BIA
    took any immediate action to address these purported appeals.
    4
    To resolve litigation between the United States and tribes over
    ownership of resources in the Hoopa Valley Reservation, Congress
    directed the Secretary of the Interior to prepare a “roll of all persons who
    can meet the criteria for eligibility as an Indian of the Reservation.”
    Hoopa-Yurok Settlement Act, 25 U.S.C. § 1300i-4. It provided three
    settlement options to persons included on the roll: (1) enroll as a member
    of the Hoopa Valley Tribe; (2) enroll as a member of the Yurok Tribe; or
    (3) take a “lump sum payment,” after which the recipient would not have
    “any interest or right whatsoever in the tribal, communal, or unallotted
    land, property, resources, or rights within, or appertaining to, the Hoopa
    Valley Reservation, the Hoopa Valley Tribe, the Yurok Reservation, or
    the Yurok Tribe.” 25 U.S.C. § 1300i-5. The Tribe and the agency dispute
    whether taking funds pursuant to the Hoopa-Yurok Settlement Act, as the
    disenrolled individuals did, disqualified them for membership under the
    Tribe’s Articles. W e need not and do not decide this matter.
    6                CAHTO TRIBE V . DUTSCHKE
    In 2000, the Superintendent, responding to a letter from
    a tribal attorney, stated that the BIA would not recognize the
    Tribe’s decision to disenroll members “based upon what [it]
    view[ed] as the [T]ribe’s misinterpretation of the Hoopa-
    Yurok Settlement Act . . . relative to the [T]ribe’s Articles of
    Association.” On administrative appeal, the Regional
    Director upheld the Superintendent’s decision.
    The Interior Board of Indian Appeals (“IBIA”), which
    had jurisdiction to review the BIA decisions, vacated both the
    decisions, determining that it would “not reach the merits of
    the enrollment dispute because . . . the BIA officials lacked
    decision-making authority in the circumstances.” In its
    decision, the IBIA did identify 25 C.F.R. Part 62 as a possible
    source of authority for the BIA to address the disenrollment.
    This regulation, as discussed below, provides that a person
    subject to an adverse enrollment action—including
    disenrollment—can appeal to the Secretary of the Interior
    “when the tribal governing document provides for an appeal
    of the action.” 
    25 C.F.R. § 62.4
    (a)(3). The IBIA
    nevertheless concluded that this regulation did not provide
    authority to review in that case because the decisions
    purported to address the Tribe’s appeal, not Sloan’s.
    Finally, in a March 26, 2009 letter, the Regional Director
    explicitly took up Sloan’s appeal, stating that he was “acting
    under the authority granted to [him] by the Tribe’s [governing
    documents] and under the authority granted in 25 C.F.R. Part
    62, to render a decision on [the] Appeals.” The Regional
    Director refused to recognize the disenrollments and directed
    the Tribe to place the disenrolled members back on the
    membership roll.
    CAHTO TRIBE V . DUTSCHKE                    7
    The Tribe sought review of this decision in district court
    pursuant to the Administrative Procedure Act. On cross-
    motions for summary judgment, the district court granted the
    Department of Interior’s motion, affirming the BIA’s
    decision. The court found, in relevant part, that the IBIA’s
    2002 decision did not bar the 2009 decision, the Tribe’s
    governing documents authorized the BIA to consider the
    appeal, and that, because the Tribe’s determination that the
    Sloans were ineligible for membership was incorrect as a
    matter of law, the BIA’s 2009 decision was neither arbitrary
    nor capricious.
    II.
    We now consider the Tribe’s appeal from that decision.
    The Tribe challenges the BIA’s decision on two grounds:
    (1) the Tribe’s governing documents do not authorize the BIA
    to review the appeal; and (2) the BIA’s decision was
    precluded by the IBIA’s 2002 decision. Because we
    determine that the tribal governing documents did not
    authorize BIA review of the appeal, we do not reach the
    second ground.
    A.
    We have jurisdiction to review final agency action,
    
    5 U.S.C. § 704
    , and the BIA’s 2009 decision was final for the
    Department of the Interior, 
    25 C.F.R. § 62.10
    . We review a
    district court’s grant or denial of summary judgment de novo.
    Humane Soc’y of U.S. v. Locke, 
    626 F.3d 1040
    , 1047 (9th Cir.
    2010). Thus, we review directly the agency’s action under
    the APA. Gila River Indian Cmty. v. United States, 
    697 F.3d 886
    , 891 (9th Cir. 2012). The APA requires us to “decide all
    relevant questions of law [and] interpret constitutional and
    8                   CAHTO TRIBE V . DUTSCHKE
    statutory provisions.” 
    5 U.S.C. § 706
    . We must “hold
    unlawful and set aside agency action, findings, and
    conclusions” that are “arbitrary, capricious, an abuse of
    discretion, or otherwise not in accordance with law,” or that
    are “in excess of statutory jurisdiction, authority, or
    limitations, or short of statutory right.” 
    Id.
     §§ 706(2)(A),(C).
    Whether the BIA had jurisdiction to review the
    disenrollment decisions in this case is a legal question that we
    review de novo. Sauer v. U.S. Dep’t of Educ., 
    668 F.3d 644
    ,
    650 (9th Cir. 2012); Yetiv v. U.S. Dep’t of Hous. & Urban
    Dev., 
    503 F.3d 1087
    , 1089 (9th Cir. 2007) (“We review de
    novo the scope of an agency’s jurisdiction.”).
    B.
    Title 25, Part 62 of the Code of Federal Regulations
    provides procedures for the “filing of appeals from adverse
    enrollment actions by tribal committees,” if, in relevant part,
    “[a]n appeal to the Secretary is provided for in the tribal
    governing document.”5 
    25 C.F.R. § 62.2
    . The regulations
    enumerate various “adverse enrollment action[s]” that an
    aggrieved individual may appeal, including: “The rejection of
    an application for enrollment or the disenrollment of a tribal
    member by a tribal committee when the tribal governing
    document provides for an appeal of the action to the
    Secretary.” 
    25 C.F.R. § 62.4
    (a)(3).
    5
    The regulations also apply if “[t]he adverse enrollment action is
    incident to the preparation of a tribal roll subject to Secretarial approval.”
    
    25 C.F.R. § 62.2
    (b)(1). Neither party argues that the BIA’s authority in
    this case arises under this subsection.
    CAHTO TRIBE V . DUTSCHKE                             9
    We thus must decide whether the Tribe’s governing
    documents provided for an appeal of disenrollment decisions.
    We agree with the Tribe that they do not.
    C.
    The text of the Tribe’s governing documents is central to
    the question of whether the Tribe authorized the BIA to
    review the disenrollment of the Sloans. In relevant part, the
    Tribe’s Articles of Association (“Articles”) provide:6
    Article III. Membership
    A. Membership of the Tribe shall consist of
    persons in the following categories whose
    eligibility for membership has been
    established in accordance with procedures set
    forth in an enrollment ordinance. . . :
    6
    The Tribe amended its Articles in 2006 to remove a requirement that
    the BIA approve the enrollment ordinance. The Sloans dispute whether
    the Articles were validly amended and they appealed the BIA’s
    certification of the amendments to the IBIA in 2008. In light of the BIA’s
    2009 decision, however, the IBIA appeal has stalled. Sloan, et al. v.
    Acting Pac. Reg’l Dir., 51 IBIA 302, 303 (June 11, 2010). Nevertheless,
    the amendment does not bear materially on our analysis. Both the agency
    and the Tribe rely on the Ordinance as providing the authority to the BIA
    to review the disenrollments.
    Consequently, we also do not address the Sloans’ argument, set forth
    in their amicus brief, that the Tribe’s charter documents are replete with
    references to the BIA, including references to the BIA in the Tribe’s
    Articles of Association, which indicate that the Tribe unambiguously
    consented to the BIA’s review and approval of all membership decisions
    and provides the authority for the BIA’s review in this case.
    10                  CAHTO TRIBE V . DUTSCHKE
    ....
    3. Persons . . . shall be ineligible for
    membership if they have been affiliated
    with any other tribe, group or band to the
    extent of (a) being included on a formal
    membership roll, (b) having received an
    allotment or formal assignment of land,
    [or] (c) having been named as a
    distributee or dependent of a distributee in
    a reservation distribution plan.
    ....
    B. The membership roll shall be brought up
    to date annually in accordance with
    procedures established by [the Ordinance].
    Pursuant to Article III, the Tribe adopted Ordinance No. 1
    (“Ordinance”),7 which provides in relevant part:
    Section 3: Filing of Applications. Any
    person who desires to be enrolled must file or
    have filed in his behalf a written application
    with the Enrollment Committee.
    ....
    Section 4. Enrolling Period. Within 30 days
    after approval of this ordinance, the
    Enrollment Committee shall announce the
    7
    The Ordinance was adopted in 1967 and remains in effect.
    CAHTO TRIBE V . DUTSCHKE                  11
    time allotted for enrolling and designate the
    place to file applications.
    Section 5: Approval and Disapproval of
    Applications. The Enrollment Committee
    shall approve or disapprove the application
    and shall notify the applicant in writing of the
    action taken.
    Section 6: Appeals. A person disapproved
    for enrollment shall be notified in writing of
    the reason(s) for disapproval and informed of
    his right to appeal to the Area Director,
    Bureau of Indian Affairs . . . . If the Area
    Director cannot sustain the decision of the
    Enrollment Committee, he shall instruct the
    Enrollment Committee to place the
    applicant’s name on the roll. The Enrollment
    Committee and/or the applicant, if the
    application is further denied, shall have the
    right to appeal to the Commissioner of Indian
    Affairs.
    ....
    Section 7: Membership Roll Preparation.
    After final decisions have been rendered on
    all applications, a roll shall be prepared with
    a certification as to its correctness by the
    Enrollment Committee and the Area Director,
    Bureau of Indian Affairs.
    Section 8:   Keeping Membership Roll
    Current. Each new Executive Committee,
    12               CAHTO TRIBE V . DUTSCHKE
    acting as an Enrollment Committee, shall be
    responsible for reviewing the membership roll
    and keeping the roll current by . . . making
    corrections as necessary, including deleting
    the names of persons on the roll who were
    placed there erroneously, fraudulently,
    otherwise incorrectly or who have
    relinquished membership by written request.
    We hold that the Tribe’s Ordinance is unambiguous and
    that it provides a right of appeal only for rejections of
    enrollment applications, not for disenrollment decisions.
    Sections three, four, five, six, and seven of the Ordinance
    discuss only “applicants” and “applications” for enrollment.
    Section six, which provides for an appeal to the BIA,
    provides appeal rights only for the rejection of applications
    for membership in the Tribe, providing in part: “A person
    disapproved for enrollment shall be . . . informed of his right
    to appeal to the [BIA].” It explicitly refers to the appeal
    rights of an “applicant.” It is also preceded by Section five,
    “Approval and Disapproval of Applications,” which provides
    that the “Enrollment Committee shall approve or disapprove
    the application and shall notify the applicant in writing of the
    action taken.” Nowhere in the tribal documents is there a
    grant of authority to the BIA to review appeals from
    disenrollment decisions.
    The agency argues that the plain language of Section six,
    the only section of the governing documents that provides for
    an appeal to the BIA from a membership decision, makes no
    distinction between enrollment applications and
    disenrollment actions, simply granting appeal rights to
    persons “disapproved for enrollment.” Thus, it argues, appeal
    rights attach to both disapprovals of applications for
    CAHTO TRIBE V . DUTSCHKE                           13
    enrollment and the disapproval of a member’s continued
    enrollment, including the Sloans’ disenrollment.
    The plain language of the Ordinance, however, is
    inconsistent with the agency’s reading. Cf. Perrin v. United
    States, 
    444 U.S. 37
    , 42 (1979) (in statutory interpretation,
    “words will be interpreted as taking their ordinary,
    contemporary, common meaning”). The rejection of an
    application for enrollment and disenrollment are distinct.
    Compare WEBSTER’S NEW INTERNATIONAL DICTIONARY 755
    (3d ed. 2002) (defining “enroll” as “to insert, register, enter
    in a list, catalog, or roll”), with id. at 643 (defining “disenroll”
    as “to release . . . from membership in an organization”).
    And, the Tribe plainly has not granted authority to the BIA to
    review disenrollment determinations.8
    The agency supports its reading by pointing to the
    equitable implications of drawing such a distinction—new
    applicants would have the right to appeal a denial of an
    application for membership while life-long members who are
    disenrolled would be left without recourse—as well as
    procedural implications—disenrolled members would have
    to take the additional step of submitting a new application
    before their adverse membership determination would be
    subject to review. These consequences, however, do not
    8
    T he BIA’s involvement in certification of the membership roll, as
    provided in Section seven, does not dictate a contrary result. While
    Section seven provides that the BIA must certify the membership
    roll— which can be kept current as provided in Section eight by “deleting
    names of persons on the roll who were placed there erroneously . . . [or]
    otherwise incorrectly”— as to its correctness after “final decisions have
    been rendered on all applications,” it makes no mention of rights to appeal
    to the BIA specific Tribal membership determinations.
    14                  CAHTO TRIBE V . DUTSCHKE
    overcome the plain language of the Tribe’s governing
    documents.
    III.
    As we have observed before, cases about tribal
    membership often implicate issues “deeply troubling on the
    level of fundamental substantive justice.” Lewis v. Norton,
    
    424 F.3d 959
    , 963 (9th Cir. 2005). However, the Ordinance
    provides appeal rights only for rejected applications for
    enrollment.9 The Tribe thus did not grant the authority to the
    BIA to review appeals from disenrollment. While mindful of
    the obstacles faced by these disenrolled individuals in
    applying for membership,10 we nevertheless encourage them
    to reapply and to seek review by the BIA if their applications
    are rejected.
    REVERSED.
    9
    The agency concedes that the BIA gives deference to tribes’ reasonable
    interpretations of their own laws. United Keetoowah Bank of Cherokee
    Indians in Oklahoma v. Muskogee Area Director, 22 IBIA 75, 80 (June 4,
    1992). In light of our discussion above, the Tribe’s interpretation was, at
    minimum, reasonable.
    10
    First, under Section three of the Ordinance, the Tribe may designate
    times to open the membership roll, and the Tribe’s position is that it is not
    obligated to open its rolls (and has done so only periodically, including in
    2010 and 2011). Additionally, the Tribe asserts that applications of
    disenrolled members would be subject to a two-tiered consideration: The
    Tribe would first decide whether there had been an error in disenrollment
    and would then process the application.