Lewis v. Norton , 424 F.3d 959 ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KATHY LYNNETTE LEWIS, LARRY 
PAUL LEWIS, JR., JERRY LEE LEWIS,
and CHAD ELLIOTT LEWIS,
Plaintiffs-Appellants,
v.
GAIL NORTON, in her capacity as No. 03-17207
the Secretary of the Department of
the Interior; TERRY VIRDEN, in his  D.C. No.
CV-03-01476-LKK
official capacity as Deputy
Commissioner of the Bureau of OPINION
Indian Affairs, a bureau within the
Department of Interior; PHILIP N.
HOGEN, in his official capacity as
Chairman of National Indian
Gaming Commission,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Senior Judge, Presiding
Argued and Submitted
April 5, 2005—Pasadena, California
Filed September 13, 2005
Before: Mary M. Schroeder, Chief Judge, Harry Pregerson
and Stephen S. Trott, Circuit Judges.
Opinion by Chief Judge Schroeder
13175
13178 LEWIS v. NORTON
COUNSEL
Brian C. Leighton, Clovis, California, for the plaintiffs-
appellants.
Debora G. Luther, Assistant U.S. Attorney, Sacramento, Cali-
fornia, for the defendant-appellees.
OPINION
SCHROEDER, Chief Judge:
The plaintiffs-appellants are siblings who brought this
action against the United States claiming that they are entitled
to recognition as members of the Table Mountain Rancheria,
a federally-recognized Indian tribe, and therefore to share in
the revenue of that tribe’s very successful casino near Fresno,
California. Although their claim to membership appears to be
a strong one, as their father is a recognized member of the
tribe, their claim cannot survive the double jurisdictional
whammy of sovereign immunity and lack of federal court
jurisdiction to intervene in tribal membership disputes. See
LEWIS v. NORTON 13179
Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978). We
therefore must affirm the district court’s dismissal of the
action.
The plaintiffs-appellants are Kathy Lynette Lewis, Larry
Paul Lewis, Jerry Lee Lewis, and Chad Elliott Lewis, four
siblings whose father was admitted to the Table Mountain
Rancheria in 2000. The defendants-appellees are officials of
the Department of Interior, the Bureau of Indian Affairs, and
the National Indian Gaming Commission.
The key events giving rise to this dispute are those sur-
rounding the recognition of the Table Mountain Rancheria’s
status in 1983, after the tribe had been disbanded in 1959. In
1983, the United States District Court for the Northern Dis-
trict of California issued a judgment ordering the Secretary of
the Interior to list the Table Mountain Band of Indians as an
Indian Tribal Entity pursuant to federal law. Table Mountain
Rancheria Ass’n v. Watt, No. C-80-4595-MHP (N.D. Cal.
1983). Following that decision, and the publication of the
notice in the Federal Register, the Table Mountain Rancheria
established its constitution. The Constitution provides that
membership of the Table Mountain Rancheria shall consist of
“[a]ll lineal descendants of persons named on the base roll . . .
provided such descendants possess at least one-quarter (1/4)
degree California Indian blood, regardless of whether the
ancestor through whom eligibility is claimed is living or
deceased.”
The plaintiffs allege that they satisfy these qualifications
for membership. They further allege that their natural father,
a current member, and their natural grandfather, natural
grandmother, and natural great-grandmother were all listed on
the base roll of the tribe. The plaintiffs allege that they filed
applications for membership with the tribe in November of
2000, but the tribe has never responded.
The plaintiffs filed this action in 2003. They seek declara-
tory and injunctive relief (1) ordering the agencies to order the
13180 LEWIS v. NORTON
tribe to recognize the plaintiffs as members, (2) prohibiting
the agencies from providing government funds to the tribe
until it recognizes the plaintiffs as members, and (3) ordering
the agencies to prohibit the tribe from disbursing casino prof-
its to its recognized members until it recognizes the plaintiffs
as members. The district court dismissed the case under Fed.
R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction. The
plaintiffs appealed.
DISCUSSION
[1] We review de novo dismissals for lack of subject matter
jurisdiction. McNatt v. Apfel, 201 F.3d 1084, 1087 (9th Cir.
2000). The Supreme Court held in Santa Clara Pueblo v.
Martinez, 436 U.S. 49 (1978), that a tribe is immune from
federal court jurisdiction in disputes regarding challenges to
membership in the tribe. That case involved a tribal member-
ship ordinance denying tribal membership to children of
female members who marry outside the tribe, while extending
membership to children of male members who marry outside
the tribe. Id. at 51. A female member who had married outside
the tribe brought suit for declaratory and injunctive relief
against the tribe, alleging that the membership criteria vio-
lated the Indian Civil Rights Act (“ICRA”), 25 U.S.C.
§§ 1301-1303. The Supreme Court held that “Indian tribes are
‘distinct, independent political communities [that] retain[ ]
their original natural rights’ in matters of local self-
government.” Id. at 55; see also Montana v. United States,
450 U.S. 544, 564 (1981); William C. Canby, Jr., American
Indian Law 187 (West 1998). The Court stated 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.” Santa Clara, 436 U.S. at 72 n.
32. The Court therefore held that it did not have jurisdiction
over the tribal membership dispute. Id. at 72.
[2] Following Santa Clara, we have recognized that “the
tribal self-government exception is designed to except purely
LEWIS v. NORTON 13181
intramural matters such as conditions of tribal membership
. . . from the general rule that otherwise applicable federal
statutes apply to Indian tribes.” Donovan v. Coeur d’Alene
Tribal Farm, 751 F.2d 1113, 1116 (9th Cir. 1985); see also
Apodaca v. Silvas, 19 F.3d 1015, 1016 (5th Cir. 1994); Smith
v. Babbitt, 100 F.3d 556, 559 (8th Cir. 1996). Courts have
held that tribal immunity bars suits to force tribes to comply
with their membership provisions, as well as suits to force
tribes to change their membership provisions. See Ordinance
59 Ass’n. v. U.S. Dep’t of the Interior Sec’y, 163 F.3d 1150,
1157 (10th Cir. 1998); Apodaca, 19 F.3d 1015-16.
[3] The plaintiffs here nevertheless contend there was a
waiver of tribal immunity for this suit when the tribe itself
went to court in 1983 to obtain the judgment recognizing the
tribe and its membership roll at that time. A resort to litigation
on the part of the tribe can, of course, result in some waiver
of immunity, but our leading case in that regard teaches that
the waiver must be a narrow one in order to be consistent with
general principles of sovereign immunity. McClendon v.
United States, 885 F.2d 627 (9th Cir. 1989).
[4] McClendon must guide us here. In that case, a plaintiff
brought suit against a tribe, alleging that the tribe violated its
lease agreement. Id. at 629. The plaintiff argued that the tribe
waived its sovereign immunity when, more than ten years ear-
lier, the United States initiated an ownership dispute on the
tribe’s behalf against the plaintiffs’ predecessor-in-interest. Id.
We held that the tribe waived its immunity for purposes of
establishing its interest in the land, but the tribe did not waive
its immunity for the resolution of later disputes to enforce the
lease. Id. at 631. We stated that “a tribe’s waiver of sovereign
immunity may be limited to the issues necessary to decide the
action brought by the tribe; the waiver is not necessarily broad
enough to encompass related matters, even if those matters
arise from the same set of underlying facts.” Id. at 630.
[5] Given the principles recognized in Santa Clara and
McClendon, we are unable to hold that the plaintiffs may
13182 LEWIS v. NORTON
maintain this claim. The Table Mountain Rancheria’s waiver
of sovereign immunity in 1983 to obtain federal recognition
of the tribe and its membership roll at that time did not consti-
tute a waiver of the tribe’s sovereign immunity in perpetuity
for the resolution of all claims to tribal membership.
The plaintiffs contend that there is no tribal remedy for
their claims, and that this fact should confer jurisdiction on
the federal courts. Under the tribe’s constitution, the plaintiffs
have recourse in the Tribal Council or the General Council.
The plaintiffs argue that these remedies are inadequate,
because those bodies are comprised of tribal members who do
not want to admit the plaintiffs to the tribe, and because the
tribe has not acted on their applications for membership in the
tribe. The plaintiffs stress that there was an adequate tribal
remedy in Santa Clara, see 436 U.S. at 65-66, and argue that
this fact makes that case materially distinguishable.
[6] The Court in Santa Clara held that nonjudicial institu-
tions like Tribal and General Councils can be appropriate
forums. The Court stated: “Tribal courts have repeatedly been
recognized as appropriate forums for the exclusive adjudica-
tion of disputes affecting important personal and property
interests of both Indians and non-Indians. Nonjudicial tribal
institutions have also been recognized as competent law-
applying bodies.” 436 U.S. at 65-66 (internal citations omit-
ted).
[7] Following Santa Clara, the Tenth Circuit held that Gen-
eral Councils can be suited to resolve an intra-tribal conflict
over tribal membership. Ordinance 59 Ass’n, 163 F.3d at
1157, 1160. The Tribal Council and the General Council in
this case are not inadequate merely because they have not
granted the plaintiffs membership. The issue is not whether
the plaintiffs’ claims would be successful in these tribal
forums, but only whether tribal forums exist that could poten-
tially resolve the plaintiffs’ claims. See, e.g., id. at 1157;
Smith, 100 F.3d at 559. We therefore must recognize the
LEWIS v. NORTON 13183
Tribal Council and the General Council as competent law-
applying bodies in this case.
[8] Finally, the plaintiffs argue that the federal courts have
jurisdiction over this dispute under the Indian Gaming Regu-
latory Act (“IGRA”), 15 U.S.C. §§ 2701-2721, and related
regulations, 25 C.F.R. § 290. The IGRA waives tribal sover-
eign immunity in the narrow category of cases where compli-
ance with the IGRA is at issue. See Mescalero Apache Tribe
v. New Mexico, 131 F.3d 1379, 1385 (10th Cir. 1997). How-
ever, the IGRA and its related provisions do not constitute a
broad waiver of sovereign immunity covering an intra-tribal
membership dispute whenever gaming revenues are at stake.
See Smith, 100 F.3d at 557-59. To the contrary, 25 C.F.R.
§ 290.23 explicitly states that “disputes arising from the allo-
cation of net gaming revenue and the distribution of per capita
payments” are to be resolved through “a tribal court system,
forum or administrative process.” The IGRA and related regu-
lations therefore do not waive the tribe’s sovereign immunity
over this intra-tribal membership dispute.
[9] The plaintiffs of course did not sue the tribe directly,
but filed this action against the federal agencies responsible
for the regulation of tribal affairs, including gaming. They did
so because they recognized that tribal immunity would create,
at the least, a serious obstacle. For the very reasons we have
already outlined that compel tribal immunity with respect to
the plaintiffs’ claims, their efforts to do an end run around
tribal immunity must also fail. The Tenth Circuit has
expressly held that plaintiffs cannot get around the Santa
Clara rule by bringing suit against the government, rather
than the tribe itself. See Ordinance 59 Assn., 163 F.3d at
1159-60. We agree. As the Tenth Circuit stated, a “federal
court order compelling the [federal agency] to comply with
the requests of [alleged members] would not have the effect
of enrolling [alleged members] in the tribe because tribes, not
the federal government, retain authority to determine tribal
membership.” Id. at 1160; see also Confederated Tribes of the
13184 LEWIS v. NORTON
Chehalis Indian Reservation v. Lujan, 928 F.2d 1496, 1498
(9th Cir. 1991).
[10] These doctrines of tribal sovereign immunity were
developed decades ago, before the gaming boom created a
new and economically valuable premium on tribal member-
ship. See, e.g., Seminole Tribe of Florida v. Florida, 517 U.S.
44, 48 (1996). We agree with the district court’s conclusion
that this case is deeply troubling on the level of fundamental
substantive justice. Nevertheless, we are not in a position to
modify well-settled doctrines of tribal sovereign immunity.
This is a matter in the hands of a higher authority than our
court.
AFFIRMED.