Millie Shaw v. Onhir

FILED
NOT FOR PUBLICATION
MAY 26 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MILLIE SHAW, No. 20-16112
Plaintiff-Appellant, D.C. No. 3:19-cv-08238-DLR
v.
MEMORANDUM*
OFFICE OF NAVAJO AND HOPI
INDIAN RELOCATION, an
Administrative Agency of the United
States,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding
Argued and Submitted April 12, 2021
San Francisco, California
Before: SCHROEDER and BADE, Circuit Judges, and JACK,** District Judge.
Dissent by Judge BADE
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Janis Graham Jack, United States District Judge for
the Southern District of Texas, sitting by designation.
Millie Shaw, who is Navajo, appeals the district court’s grant of summary
judgment affirming the administrative decision by the Office of Navajo and Hopi
Indian Relocation (ONHIR) denying her application for relocation benefits under
the Navajo-Hopi Settlement Act. We have jurisdiction pursuant to 28 U.S.C. §
1291 and review the district court’s summary judgment decision de novo.
Brunozzi v. Cable Commc’ns, Inc., 851 F.3d 990, 995 (9th Cir. 2017). We review
ONHIR’s decision to determine if it was “arbitrary, capricious, an abuse of
discretion, not in accordance with law, or unsupported by substantial evidence.”
Bedoni v. Navajo-Hopi Indian Relocation Comm’n, 878 F.2d 1119, 1122 (9th Cir.
1989); see also 5 U.S.C. § 706(2)(A), (E). We reverse.
Shaw is entitled to benefits if she was a legal resident of land that later
became Hopi Partitioned Lands (HPL), as of the critical date of December 22,
1974. 25 C.F.R. § 700.147. She qualifies as a legal resident of the land if she was
using it for traditional activities. It is not disputed that Shaw’s family had both a
summer and winter camp, and that the hogan for each camp was located on land
that later became the Navajo Partitioned Lands (NPL). The sweat lodge, grazing
lands, cornfields, and watering holes for the winter camp, however, were on the
HPL. It is also not disputed that Shaw lived with her family following the birth of
her son in May 1974 and had no outside employment. She testified that after her
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son was born she went back and forth between the camps and lived with her father,
mother, and siblings at both camps.
In earlier proceedings, Shaw’s father, mother, and sister received benefits.
The same Hearing Officer (HO) held in this case that Shaw had not shown she
could be considered to have made any use of the HPL. The district court upheld
that determination.
Shaw first contends that the HO erred in failing to apply principles of
general domicile law, arguing that if Shaw established past domicile on the HPL,
the burden was on the government to prove that domicile had changed and that she
was not a resident of the HPL. The burden of proving residence under this Act lies
with the applicant. 25 C.F.R. § 700.147(b). We have found no authority to
support Shaw’s alternative theory, and Shaw cites none.
The issue then becomes whether the HO’s decision that Shaw engaged in no
traditional activities on the HPL after 1972 was supported by substantial evidence.
There is no direct evidence to support that conclusion. Shaw testified that she
herded sheep only on the summer side, and, in May, slept in the summer camp.
However, she also testified that she lived in both camps after the birth of her son,
sometimes gathered sheep near the winter camp, and gathered wood and helped her
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mother with animals on the winter side. She also testified that she hauled water;
the watering holes were on the HPL.
Shaw returned home to live with her family after her sister’s death in 1972.
After the birth of her son in May 1974, Shaw did not have outside work. Per
Shaw’s testimony, she was immersed in a traditional Navajo lifestyle with her
family during that time. The HO found that, for the purposes of the Act, her
parents and sister resided on the HPL as of December 22, 1974. The HO never
explained why his conclusion here is inconsistent with his decision in the cases of
Shaw’s family members with whom she lived and worked in traditional activities.
We conclude that the HO’s decision is not supported by substantial
evidence, and Shaw is entitled to benefits.
Judgment of the district court is REVERSED, and the case REMANDED
to the district court with instructions to direct the ONHIR to grant benefits.
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FILED
Shaw v. Office of Navajo and Hopi Indian Relocation, No. 20-16112 MAY 26 2021
MOLLY C. DWYER, CLERK
BADE, Circuit Judge, dissenting: U.S. COURT OF APPEALS
The majority concludes that the Office of Navajo and Hopi Indian
Relocation’s (ONHIR) decision denying relocation benefits to Millie Shaw under
the Settlement Act, 25 U.S.C. §§ 640d to 640d-31, is not supported by substantial
evidence. But under this “highly deferential” standard of review, we must affirm
when “a reasonable basis exists for [the agency’s] decision.” Cal. Pac. Bank v.
Fed. Deposit Ins., 885 F.3d 560, 570 (9th Cir. 2018) (citation omitted); see also id.(“Substantial evidence is . . . such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” (citation omitted)). And, critically, it
is the agency’s responsibility to “resolv[e] ambiguities.” See id. (citing Andrews v.
Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). Because the evidence to establish
Shaw’s entitlement to relocation benefits is, at best, ambiguous and inconclusive, I
respectfully dissent. See Nat’l Fam. Farm Coal. v. U.S. Env’t Prot. Agency, 960
F.3d 1120, 1132–33 (9th Cir. 2020) (explaining that if the evidence is
inconclusive, we must uphold the agency’s decision).
I.
I agree with the majority that Shaw, a Navajo, is only entitled to relocation
benefits under the Settlement Act if she established during the ONHIR proceedings
that, on December 22, 1974, she resided on land that was partitioned under the Act
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to the Hopi Tribe (Hopi Partitioned Land or HPL). See 25 C.F.R. § 700.97(a).
Shaw conceded that she lived on land partitioned to the Navajo Nation (Navajo
Partitioned Land or NPL) in December 1974, and the majority correctly rejected
her burden-shifting argument in which she sought to establish residency on HPL
based on her past domicile. Therefore, she could only establish entitlement to
benefits under the ONHIR policy recognizing residency based on “continuous use”
of “a customary use area [that] existed on December 22, 1974.”1
To meet this burden, Shaw testified that from 1972 to 1974 she
intermittently helped her family with various tasks, including herding sheep, caring
for the family’s livestock, gathering wood, and hauling water. She performed
these tasks at the family’s homesites, which she described as the winter camp and
the summer camp. Testimony during Shaw’s hearing supports that the residences
and all improvements at both homesites were located on NPL. The hearing officer
found that Shaw did not establish that she performed traditional activities on HPL,
and the ONHIR adopted that determination as its final decision.
The majority concludes that the hearing officer erred because Shaw testified
that she gathered wood and hauled water. But Shaw testified that she
1
This policy of recognizing residency based on the “continuous use” of “a
customary use area” is not codified in the federal regulations, but instead is based
on an independent hearing officer’s decision in In re Minnie Woodie, No. 5124.
Begay v. ONHIR, 305 F. Supp. 3d 1040, 1048 (D. Ariz. 2018).
2
“sometime[s]” performed these tasks, but only on weekends, to help her father
while she worked weekdays from October 1973 to July 1974. Shaw further
testified that the only work she did after July 1974 was limited to helping “clean
[her] mom’s house” and taking care of the livestock. But she also testified that she
did not work after her son was born in May 1974 and that she was “just taking
care” of her son. The record therefore supports the conclusion that Shaw was not
gathering wood or hauling water after July 1974, which is several months before
the determinative date of December 22, 1974.
Additionally, the record does not establish that Shaw continuously
performed any traditional activity, at any time, on HPL. 2 Instead, Shaw testified
2
Contrary to the majority’s assertion that “[p]er Shaw’s testimony,” she
“was immersed in a traditional Navajo lifestyle with her family during that time,”
Shaw testified only that she tried to weave “but [] didn’t do it.” She did not testify
that she engaged in any activities that were part of “a traditional Navajo lifestyle,”
except sheep herding, which she testified occurred only on NPL. The majority
nonetheless concludes that the ONHIR erred because it failed to properly apply its
traditional use policy, as recognized in the Minnie Woodie decision, see supra note
1. But the applicant in Minnie Woodie was a “traditional Navajo elder . . . living a
traditional Navajo lifestyle,” in which she “carded wool, dyed wool, wove rugs
from the wool and followed the sheep from camp to camp along with other family
members.” She also “gathered herbs from which to make dyes in various areas of
the traditional use area [and] set up her loom wherever the family traveled
throughout the traditional use area.” The great disparity between Shaw’s activities
and the activities of the applicant in Minnie Woodie further supports the ONHIR’s
determination that Shaw did not establish she used HPL for traditional activities.
See Fall River Rural Elec. Co-op., Inc. v. FERC, 543 F.3d 519, 528–29 (9th Cir.
2008); see also Atchison, Topeka & Santa Fe Ry. v. Wichita Bd. of Trade, 412 U.S.
800, 808–09 (1973) (cautioning that courts must avoid invading the policymaking
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that she herded sheep exclusively on NPL, intermittently helped her mother care
for livestock, and helped her father gather wood and haul water. But she did not
say where she performed these activities, or whether she engaged in these activities
with sufficient regularity to demonstrate that she made continuous use of HPL.
The majority relies on testimony from another hearing, that occurred eight years
before Shaw’s hearing, and involved other applicants who testified that there were
waterholes on HPL. The majority then infers that Shaw must have hauled water
from waterholes on HPL. Tellingly, Shaw never said she hauled water from a
waterhole or from any water source on HPL.
The majority is simply filling in the evidentiary gaps and drawing inferences
in Shaw’s favor. But that is not our role when reviewing agency actions for
substantial evidence. Instead, it is the agency’s responsibility to “resolv[e]
ambiguities.” See Cal. Pac. Bank, 885 F.3d at 570. And, at best, the record here is
unclear on whether Shaw hauled water or performed any other traditional activity
on HPL as of December 22, 1974. Because the evidence was inconclusive, the
ONHIR was entitled to resolve these ambiguities against Shaw. See Nat’l Fam.
Farm Coal., 960 F.3d at 1133; Cal. Pac. Bank, 885 F.3d at 570.
domain of the agency when analyzing whether the agency properly distinguished
prior agency decisions).
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II.
The majority also emphasizes that Shaw’s father and her sister received
relocation benefits and asserts that there is disparity between those decisions and
the denial of benefits to Shaw. However, nothing in the record indicates why her
father and sister received relocation benefits. Even if we assume that the ONHIR
determined that her father and sister were entitled to relocation benefits because
they continuously used HPL for traditional activities, that determination would not
demonstrate that Shaw also continuously used HPL for traditional activities.3 The
majority improperly draws inferences from ambiguous evidence, a task that we
must leave to the ONHIR. See Cal. Pac. Bank, 885 F.3d at 570.
III.
The majority engages in de novo review of the ONHIR’s factual findings
and disregards the highly deferential standard of review that applies to agency
actions. The ONHIR was entitled to resolve the ambiguities in the record against
3
Shaw’s father, Charley Daw, received a notification of eligibility for
relocation assistance benefits, dated January 12, 2011, but the notice does not
explain the ONHIR’s eligibility determination. In a decision received by the
ONHIR on February 6, 2008, a hearing officer upheld the denial of benefits to
Shaw’s sister, Marie Daw. The sister’s application was later granted, but the
record provides no explanation for that decision or when it occurred. Because the
benefits applications of Shaw’s father and sister were apparently decided before
the ONHIR Executive Director’s September 4, 2012 decision announcing the
Minnie Woodie exception, supra note 1, it is difficult to determine whether their
applications were decided based on an analysis of continuous traditional use of
HPL, and thus can be meaningfully compared to Shaw’s case.
5
Shaw, and the paucity of evidence that Shaw performed traditional activities on
HPL as of December 22, 1974 sufficiently supports the ONHIR’s determination
that Shaw did not meet her burden. Cal. Pac. Bank, 885 F.3d at 570. I respectfully
dissent.
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