Williams v. Gover ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANNY L. WILLIAMS; BEVERLY A. 
CLARK-MILLER; FREDDIE A.
GRAMPS, JR.; CARRIE JEAN PEDRINI-
PIERSON; CHRISTINE MARIE DOBIS;
CINDY LUSK WICKLANDER; CLAUDIA
GRAMPS; GARY LEE SEEK;
JACQUELINE MARIE CONN; DAVIDA
E. GRAMPS; JULIA JARVIS
WICKLANDER; LAVONNE TRACY
WOODS GRAMPS; LAWRENCE IRA
SEEK; RHONDA LEANN CORKIN;
RICHARD WICKLANDER; RICKY DALE
GRAMPS; RONALD SEEK; ROSE No. 04-17482
SHUMARD WICKLANDER; ROXANNE
GRAMPS; RUSSELL D. GRAMPS;  D.C. No.
CV-01-02040-WBS
SUSANNE GRAMPS; TERESA MARIE
LISKE; VIVIAN SEBRING; JUNIOR OPINION
DALE EDWARDS; SHIRLEY FAYE
UNDERWOOD; CHERRIE MARIE
CLARK; TERESA JUANITA CLARK,
COY EUGENE CLARK; CLINTON
WAYNE STATON; GEORGIA MAY
BURDICK GEORGIA MAY BURDICK
HONROTH; ROBERT ALLEN HONROTH;
ROBERT STANLEY ROTH; CLIFFORD
MILES BURDICK; MICHELLE RENE
BURDICK MICHELLE RENE’ BURDICK
SHIELDS; PAMELA SUE BURDICK
PAMELA SUE BURDICK TERRY;

7411
7412 WILLIAMS v. GOVER
RICHARD MILES BURDICK; BONITA 
LYNN BURDICK CHAMBERS; GEORGE
RONAD BURDICK; GEORGINA DANYEL
BURDICK; KASEY BROOK BURDICK;
NEVILLE BRAND BURDICK; EMMA
JEAN TIMMONS TUTTLE; LAWRENCE
TUTTLE; KAREN TUTTLE WESR;
RAYMOND TUTTLE; DAVID FIELDS;
ELLEN SEEK; LARRY GRAQCES, SR.;
RICHARD W. GRAVES; CHARLES M.
GRAVES; PEARL W. WAGNER;
MELBA ELLEN RAZO; CHARLES
WESLEY GRAVES; LARRY GRAVES,
JR.; FRAN HAWKINS; LORI WATKINS; 
LEANNA GRAVES; KIM GRAVES;
RONALD ARDEL GRAVES; JOANN
PARSONS; JANICE KAYE WRIGHT;
CRISTINA LYNN WILSON; SUE
BROWN DENISE; RICKIE DEAN
WILSON; DAVID LEE WILSON,
Plaintiffs-Appellants,
v.
KEVIN GOVER,
Defendant,
and

WILLIAMS v. GOVER 7413
CLAY GREGORY,* Regional Director 
of the Pacific Region of the
Bureau of Indian Affairs; TROY
BURDICK,** Superintendent of the
Central California Agency of the
Bureau of Indian Affairs; UNITED
STATES OF AMERICA; AURENE 
MARTIN, as Acting Assistant
Secretary of the Interior for Indian
Affairs; NEAL MCCALEB, as
Assistant Secretary of the Interior
for Indian Affairs,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, Chief District Judge, Presiding
Argued and Submitted
November 14, 2006—San Francisco, California
Filed June 20, 2007
Before: Andrew J. Kleinfeld and Sidney R. Thomas,
Circuit Judges, and Ronald B. Leighton,*** District Judge.
*Clay Gregory is substituted for his predecessor, Ronald Jaeger, as
Regional Director [formerly known as “Area Director”] of the Pacific
Region [formerly, the Sacramento Area Office] of the Bureau of Indian
Affairs, pursuant to Fed. R. App. P. 43(c)(2).
**Troy Burdick is substituted for his predecessor, Dale Risling, as
Superintendent of the Central California Agency of the Bureau of Indian
Affairs, pursuant to Fed. R. App. P. 43(c)(2).
***The Honorable Ronald B. Leighton, United States District Judge for
the Western District of Washington, sitting by designation.
7414 WILLIAMS v. GOVER
Opinion by Judge Kleinfeld
7416 WILLIAMS v. GOVER
COUNSEL
Dennis G. Chappabitty, Sacramento, California, for the appel-
lants.
Kristi C. Kapetan (argued), Assistant U.S. Attorney, Fresno,
California, and Debora G. Luther (briefed), Assistant U.S.
Attorney, Sacramento, California, for the appellees.
OPINION
KLEINFELD, Circuit Judge:
This case is controlled by the proposition that an Indian
tribe has the power to decide who is a member of the tribe.
Facts
Plaintiffs claim that they are descended from people who
were named as members of the Mooretown Rancheria Indian
tribe in either a 1915 census or a 1935 tribal voter list. “Ran-
cherias are numerous small Indian reservations or communi-
ties in California, the lands for which were purchased by the
Government (with Congressional authorization) for Indian use
WILLIAMS v. GOVER 7417
from time to time in the early years of [the twentieth] century
— a program triggered by an inquiry (in 1905-06) into the
landless, homeless or penurious state of many California Indi-
ans.”1 In 1958, the Mooretown Rancheria consisted of two
separated 80 acre parcels of land in Butte County, California,
near Oroville.
Congress adopted the California Rancheria Termination
Act in 1958 in order to distribute rancheria lands to individual
Indians.2 The Act provided for the conveyance of rancheria
assets, with unrestricted title, to the individual Indians living
there, if a majority of the Indians voting approved. Before
conveyance, the Act required the government to survey the
land owned by the rancheria, construct or improve the roads
serving the rancheria, install or rehabilitate irrigation, sanita-
tion, and domestic water systems, and exchange land held in
trust for the rancheria.3 The Indians who received the assets
would not thereafter be entitled to the services provided by
reason of Indian status.4
Two families occupied the two 80 acre parcels constituting
the Mooretown Rancheria. In 1959, the families voted for ter-
mination of Mooretown Rancheria and distribution of its land
under the Act, and the government distributed the parcels to
the members of those families. In 1979, members of thirty-
four terminated tribes, including Mooretown Rancheria, filed
a class action seeking restoration of tribal status for ran-
1
Duncan v. United States, 667 F.2d 36, 38 (Ct. Cl. 1981).
2
California Rancheria Termination Act, Pub. L. No. 85-671, 72 Stat.
619 (1958).
3
California Rancheria Termination Act, Pub. L. No. 85-671, § 3, 72
Stat. 619, 620 (1958) (as amended by Pub. L. No. 88-419, 78 Stat. 390(1964)). See also Hopland Band of Pomo Indians v. United States, 855
F.2d 1573, 1574 (Fed. Cir. 1988).
4
California Rancheria Termination Act, Pub. L. No. 85-671, § 10(b), 72
Stat. 619, 621 (1958) (as amended by Pub. L. No. 88-419, 78 Stat. 390(1964)). See also Hopland Band of Pomo Indians v. United States, 855
F.2d 1573, 1575 (Fed. Cir. 1988).
7418 WILLIAMS v. GOVER
cherias. In 1983, the government entered into a consent
decree in a class action, restoring the Mooretown Rancheria
as a federally-recognized rancheria and Indian tribe.5
The Bureau of Indian Affairs (“BIA”) invited the plaintiffs
and class members at Mooretown Rancheria to a meeting in
June 1984. At the meeting, BIA officers explained that each
individual landowner could reconvey his or her land to the
United States to be held in trust (avoiding taxes and local reg-
ulation but subjecting the land to some federal control), or
not, as they chose, and that the tribe could form a government.
No one chose to put their land in trust and the tribal members
at the meeting chose not to organize a tribal government.
Three years later, sentiments had changed. In October
1987, tribal members organized a tribal meeting. They invited
all direct descendants of the people who lived at Mooretown
Rancheria when it was terminated in 1959, the BIA, and any-
one else interested in attending. The BIA did not organize the
meeting and no one from the BIA attended the meeting. The
lead plaintiff in this case did attend the meeting. At the Octo-
ber 1987 meeting, Mooretown Rancheria decided to organize
a tribal government. Soon afterward, Mooretown Rancheria
adopted a tribal constitution. According to the constitution,
tribal membership consisted of the four people to whom
Mooretown Rancheria was distributed upon termination in
1959, their dependents, and lineal descendants of those dis-
tributees and their dependants.
The problem that led to this lawsuit is that the plaintiffs got
squeezed out of full tribal membership. A 1998 tribal resolu-
tion further narrowed full tribal membership to “only those
members who are direct lineal descendants of the four distrib-
utees.” Other tribal members were “reclassified” by the reso-
lution as “adoptee members.” Thus, although the plaintiffs are
Concow-Maidu Indians descended from people who have
5
Hardwick v. United States, No. C 79-1710 SW (N.D. Cal. 1983).
WILLIAMS v. GOVER 7419
lived at Mooretown Rancheria for a very long time, they lack
the rights of full members of the Mooretown Rancheria tribe.
This does not affect their status as Indians for the purpose of
federal governmental benefits conferred on Indians. But it
does affect their tribal voting rights. Depending on tribal deci-
sions, it may also affect their right to a share of the revenues
generated by tribal casinos and other tribal activities.
Plaintiffs sued officials of the Department of the Interior,
Bureau of Indian Affairs. They did not sue Mooretown Ran-
cheria. The district court dismissed the case on a motion to
dismiss and for summary judgment, and plaintiffs appeal.
Analysis
[1] Plaintiffs have an insuperable problem with their case.
An Indian tribe has the power to define membership as it
chooses, subject to the plenary power of Congress.6 Nor need
the tribe, in the absence of Congressional constraints, comply
with the constitutional limitations binding on federal and state
governments when it exercises this and other powers. In 1978,
the Supreme Court held in Santa Clara Pueblo v. Martinez
that “[a]s separate sovereigns pre-existing the Constitution,
tribes have historically been regarded as unconstrained by
those constitutional provisions framed specifically as limita-
tions on federal or state authority.”7 Even where there is some
6
Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 (1978) (“A tribe’s
right to define its own membership for tribal purposes has long been rec-
ognized as central to its existence as an independent political communi-
ty.”). See Adams v. Morton, 581 F.2d 1314, 1320 (9th Cir. 1978)
(“[U]nless limited by treaty or statute, a Tribe has the power to determine
tribal membership.”), accord, Apodaca v. Silvas, 19 F.3d 1015 (5th Cir.
1994) (per curiam); Smith v. Babbitt, 100 F.3d 556 (8th Cir. 1996); Ordi-
nance 59 Assn. v. United States Dept. of the Interior, 163 F.3d 1150 (10th
Cir. 1998). See also, Felix S. Cohen, Handbook of Federal Indian Law 98-
100, 133-37 (1942).
7
Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978) (Marshall, J.).
Santa Clara Pueblo cites Roff v. Burney, 168 U.S. 218 (1897). In Roff, the
Supreme Court held that the “only restriction on the power” of an Indian
tribe “to legislate in respect to its internal affairs is that such legislation
shall not conflict with the Constitution or laws of the United States.” Roff
v. Burney, 168 U.S. 218, 222 (1897).
7420 WILLIAMS v. GOVER
legal constraint on tribes, “ ‘without congressional authoriza-
tion,’ the ‘Indian Nations are exempt from suit.’ ”8 “[T]he
tribes remain quasi-sovereign nations which, by government
structure, culture, and source of sovereignty are in many ways
foreign to the constitutional institutions of the Federal and
State governments.”9
Doubtless because of these well-established limitations,
plaintiffs style their complaint as against the BIA, rather than
the tribe. They have two theories.
First, plaintiffs argue that the BIA violated the Administra-
tive Procedure Act by adopting a “rule” without the required
notice and comment procedure.10 The district court rejected
this argument, finding that the BIA never promulgated any
“rule.” We agree.
It is unclear what “rule” plaintiffs suppose that the BIA
promulgated. Plaintiffs note that when the Hardwick stipu-
lated class action judgment restored a number of terminated
rancherias, BIA memoranda mentioned using the lists of peo-
ple to whom the rancherias were distributed upon termination,
their dependents, and their lineal descendants as a starting
point for determining the tribal membership rolls. If the BIA
had promulgated such a rule providing for tribal membership,
it putatively would impair the claims of plaintiffs in this case,
who are descendants of people who appear in the 1915 tribal
census and 1935 tribal voter roll, but are not descendants of
the distributees.
[2] But the BIA carefully avoided promulgating any such
rule or policy, respecting the right of the various restored ran-
cherias to define their own memberships. In 1984, the BIA
invited the known Hardwick plaintiffs and class members to
8
Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978).
9
Santa Clara Pueblo v. Martinez, 436 U.S. 49, 71 (1978).
10
5 U.S.C. § 551.
WILLIAMS v. GOVER 7421
a meeting where it told them about the Hardwick settlement
and offered to help them form a tribal government, if they
chose to do so. The eleven people who came to the Moore-
town Rancheria meeting chose not to organize a formal gov-
ernment. In 1987, Mooretown Rancheria invited the BIA —
not the other way around — to an “open meeting,” where the
Rancheria organized a tribal roll. The invitation, apparently
from a member of Mooretown Rancheria, was addressed to
direct descendants of the four distributees, but expressly
stated that the meeting was “open” and “anyone interested in
attending is welcome.”
No one from the BIA attended the 1987 meeting. The lead
plaintiff in this case did attend. Plaintiffs do not claim that
Mooretown Rancheria organized behind their backs. At the
meeting, Mooretown Rancheria organized a tribal govern-
ment. The Rancheria sent the BIA a copy of the attendance
list. The BIA provided neither a membership list nor member-
ship criteria. In 1998, Mooretown Rancheria sent the BIA a
copy of its Constitution and Enrollment List,11 limiting tribal
membership to lineal descendants of the four 1959 distrib-
utees.
[3] We cannot identify anything the BIA did that consti-
tutes promulgating a “rule” under the Administrative Proce-
dure Act. The BIA never told Mooretown Rancheria who
should qualify for tribal membership. When the BIA invited
people to a meeting in 1984, it addressed the invitation, “Dear
Plaintiff and Class member.” The phrase “class member”
referred to the Hardwick class action. When Mooretown Ran-
cheria organized, some of the plaintiffs were members. But
when in 1998, Mooretown Rancheria decided to limit tribal
membership to “only those members who are direct Lineal
Descendants of the four distributees,”12 those plaintiffs were
11
Mooretown Rancheria is not organized under the Indian Reorganiza-
tion Act, so the BIA did not require it to provide these materials.
12
Mooretown Rancheria, Resolution 98-218, Reclassification of Mem-
bership in Accordance With the Constitution of the Mooretown Rancheria,
February 18, 1998 (emphasis in original).
7422 WILLIAMS v. GOVER
squeezed out. Uncontradicted evidence establishes that
Mooretown Rancheria itself squeezed them out, and that it did
not act at the behest of the BIA.
[4] Under Santa Clara Pueblo,13 Mooretown Rancheria had
the power to squeeze the plaintiffs out, because it has the
power to define its own membership. It did not need the
BIA’s permission and did not ask for it, and the BIA never
purported to tell it how to define its membership. Plaintiffs
argue that the BIA had a policy amounting to a “rule”14 that
tribal membership in restored rancherias ought to consist of
the original distributees and their lineal descendants. We find
no evidence of any such policy in the record. And given a
tribe’s sovereign authority to define its own membership, it is
unclear how the BIA could have any such policy.
[5] Plaintiffs’s best evidence of a BIA policy is its 1984
invitation, which was addressed, “Dear Plaintiff and Class
member.” Plaintiffs also point to scattered remarks in BIA
documents that suggest the BIA looked to the “distributees
and heirs” language of the Hardwick stipulated class action
judgment when it decided whom it should contact about
reviving other restored rancherias. The Hardwick stipulated
judgment defined the class as distributees of each rancheria
and their “Indian heirs, legatees or successors in interest.”
Plaintiffs can only point to the address, and do not purport to
challenge the class definition upon which the BIA based the
address. The letter did not suggest any tribal membership
criteria, did not result in any organization of Mooretown Ran-
13
Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978).
14
5 U.S.C. § 551(4) (“ ‘rule’ means the whole or a part of an agency
statement of general or particular applicability and future effect designed
to implement, interpret, or prescribe law or policy or describing the orga-
nization, procedure, or practice requirements of an agency and includes
the approval or prescription for the future of rates, wages, corporate or
financial structures or reorganizations thereof, prices, facilities, appli-
ances, services or allowances therefor or of valuations, costs, or account-
ing, or practices bearing on any of the foregoing”).
WILLIAMS v. GOVER 7423
cheria (which chose at that time not to reorganize), and did
not coincide with the membership criterion that squeezed
plaintiffs out when Mooretown Rancheria eventually adopted
the membership criterion fourteen years later.
[6] The record does not establish that the BIA had any
“rule” governing tribal membership or suggesting tribal mem-
bership criteria in restored rancherias. It does not establish
that the BIA had any rule — or that Mooretown Rancheria
followed any rule — regarding who could attend tribal meet-
ings and participate in organizing a tribal government. And
without a “rule,” there can be no violation of the Administra-
tive Procedure Act notice and comment requirements for
rules.
[7] Second, plaintiffs argue that the BIA denied them due
process of law under the Fifth Amendment because BIA
action deprived them of tribal membership. As explained
above, nothing in the record supports this allegation. Also, no
facts could be proved that would establish such a deprivation.
Santa Clara Pueblo and its predecessors establish that “[a]
tribe’s right to define its own membership for tribal purposes
has long been recognized as central to its existence as an inde-
pendent political community.”15 For this reason, the BIA
could not have defined the membership of Mooretown Ran-
cheria, even if had tried.
[8] Plaintiffs suggest that we should distinguish Santa
Clara Pueblo because the Santa Clara Pueblo were a continu-
ously existing tribe,16 while Mooretown Rancheria was termi-
nated and restored. Such a distinction would be unsound,
because it would deprive restored tribes of the power to deter-
mine their own membership. Nothing in the ratio decidendi
of Santa Clara Pueblo supports such a distinction. Through-
out the twentieth century, tribal organization or the lack
15
Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 (1978).
16
Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).
7424 WILLIAMS v. GOVER
thereof presented the members of Mooretown Rancheria with
both benefits and detriments, and from time to time their deci-
sions and preferences varied. The termination and restoration
of Mooretown Rancheria does not justify depriving it of its
sovereign power to define its membership when it organized
a tribal government in 1987.
AFFIRMED.