Timbisha Shoshone Tribe v. U.S. Department of the Interior

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TIMBISHA SHOSHONE TRIBE; JOSEPH No. 13-16182
KENNEDY; ANGELA BOLAND; GRACE
GOAD; ERICK MASON; HILLARY D.C. No.
FRANK; MADELINE ESTEVES; 2:11-cv-00995-
PAULINE ESTEVES, MCE-DAD
Plaintiffs-Appellants,
v. OPINION
U.S. DEPARTMENT OF THE INTERIOR;
LARRY ECHO HAWK; AMY
DUTSCHKE; TROY BURDICK;
MARGARET CORTEZ; WILLIAM
EDDY; GEORGE GHOLSON; CLYDE
NICHOLS; EARL FRANK; DONALD
LAVERDUE; BUREAU OF INDIAN
AFFAIRS,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., Chief District Judge, Presiding
Argued and Submitted January 4, 2016
San Francisco, California
Filed May 27, 2016
2 TIMBISHA SHOSHONE TRIBE V. USDOI
Before: J. Clifford Wallace and Diarmuid F. O’Scannlain,
Circuit Judges and Marilyn L. Huff,* District Judge.
Opinion by Judge Wallace
SUMMARY**
Mootness / Tribal Affairs
The panel dismissed, as moot, an appeal from the district
court’s dismissal of a case challenging the Department of the
Interior’s recognition of the election results for leadership
authority over the Timbisha Shoshone Tribe.
The panel held that the Tribe’s recent adoption of a new
constitution, which overhauled tribal membership
requirements, mooted the appeal because there was no chance
that a remand to the Bureau of Indian Affairs would make
any difference whatsoever in the election results.
COUNSEL
Jeffrey R. Keohane (argued), George Forman, Jay B. Shapiro,
and Kimberly A. Cluff, San Rafael, California, for Plaintiffs-
Appellants.
*
The Honorable Marilyn L. Huff, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
TIMBISHA SHOSHONE TRIBE V. USDOI 3
Mary Gabrielle Sprague (argued), Katherine J. Barton, and
John C. Cruden, Assistant Attorney General, Appellate
Section, Environment & Natural Resources Division, United
States Department of Justice, Washington, D.C., for Federal
Defendants-Appellees.
James M. Birkelund (argued), Law Offices of James
Birkelund, San Francisco, California; Mark A. Levitan,
Sonora, California, for Tribal Council Defendants-Appellees.
OPINION
WALLACE, Senior Circuit Judge:
Since at least 2002, several competing factions have vied
for leadership authority over the Timbisha Shoshone Tribe.
Faced with these competing claims of authority, the
Department of Interior (Department) reviewed the electoral
history and recognized one of the factions for a limited time
until the Tribe could hold a special election to choose new
leadership. After the Department’s decision, the Tribe
conducted a special election resulting in new leadership. The
Department recognized the election’s result because it
concluded that the Tribe conducted the election in compliance
with tribal law.
The defeated faction argues that the Department erred in
several of its decisions by failing to comply with the
Administrative Procedures Act, 5 U.S.C. § 500–596, in a
variety of ways. We need take no position on those issues,
however, if we conclude this appeal is now moot. We
conclude that it is. Therefore, we lack jurisdiction to rule on
the merits and, accordingly, dismiss this appeal.
4 TIMBISHA SHOSHONE TRIBE V. USDOI
I.
For many Indian tribes, federal recognition is of great
importance because “[s]uch status is a ‘prerequisite to the
protection, services, and benefits of the Federal government
available to Indian tribes by virtue of their status as tribes.’”
AMERICAN INDIAN LAW DESKBOOK § 2:6 (quoting 25 C.F.R.
§ 83.2 (1994)). For instance, federally recognized tribes may
receive “assistance for such purposes as corrections, child
welfare, education, and fish and wildlife and environmental
programs.” Id. Moreover, only federally recognized tribes
may operate gambling facilities under the federal Indian
Gaming Regulatory Act. See Big Lagoon Rancheria v.
California, 789 F.3d 947, 949–50 (9th Cir. 2015) (en banc).
The Timbisha Shoshone Tribe received federal
recognition as a sovereign Indian nation in 1983. See
Timbisha Shoshone Homeland Act, Pub. L. No. 106-423, 114
Stat. 1875 (2000). The Tribe’s organizational document is a
written constitution, which allocates governmental power
among three distinct branches: a General Council, a Tribal
Council, and a Tribal Judiciary.1 The General Council is the
Tribe’s supreme governing body but has delegated some of
its authority to the Tribal Council. The Tribal Council
consists of five people, each of whom holds office for two
years. The Tribe holds general elections for the Tribal
Council every year in November, but the Tribal Council
officers’ terms of office are staggered so that not every seat
1
The Tribe adopted a new constitution in 2014 and it contains some
significant changes from the earlier version. But in describing the
background of this case, we refer to the pre-2014 constitution because that
was the document under which the parties operated during the relevant
background events.
TIMBISHA SHOSHONE TRIBE V. USDOI 5
is up for election every year. A Tribal Council seat may also
become vacant if a member resigns, is removed from office,
or is recalled from office.
Various rival factions within the Tribe have been vying
for control over the Tribal Council for over a decade. See,
e.g., Timbisha Shoshone Tribe v. U.S. Dep’t of the Interior,
No. 2:11-cv-00995-MCE-DAD, 2011 WL 1883862 (E.D.
Cal. May 16, 2011); Timbisha Shoshone Tribe v. Bureau of
Indian Affairs, No. CIVS-03-404 WBS/GGH, 2003 WL
25897083 (E.D. Cal. April 10, 2003). Since the inception of
these leadership disputes, Joseph Kennedy had headed one
faction, and we refer generally to the various constituents he
has led over the years as the Kennedy Group.
While it is not the start of the factional disputes, we begin
our discussion of this case with the Tribe’s November 2006
elections, where Kennedy was elected Chairman of the Tribal
Council. At an August 2007 Tribal Council meeting,
Kennedy charged two other Council officers with committing
misconduct while in office. The two charged officers, along
with another Council officer, then left the meeting. These
three were members of a group we refer to generally as the
Beaman Group. After the Beaman Group members left,
Kennedy and the other remaining Council officer purported
to fill one of the vacant seats. Meanwhile, the Beaman Group
later adopted resolutions purporting to act as the Tribe’s
leadership.
At the time of the next annual Tribal Council election in
November 2007, both the Kennedy Group and the Beaman
Group held elections, which unsurprisingly resulted in each
group winning its own election. Troy Burdick, the
Superintendent of the Central California Agency of the
6 TIMBISHA SHOSHONE TRIBE V. USDOI
Bureau of Indian Affairs (which is an agency within the
Department of Interior), initially refused to recognize either
election, but he later reversed course and recognized the
Kennedy Group’s election results. Superintendent Burdick
based the reversal on a January 2008 General Council
meeting that Kennedy organized in which the General
Council adopted resolutions purporting to ratify the results of
the Kennedy Group’s election. The Beaman Group appealed
Superintendent Burdick’s decision.
The newly recognized Kennedy Group later reviewed the
Tribe’s membership rolls and disenrolled 74 members who
allegedly did not meet the membership criteria. George
Gholson was one of those disenrolled members. Around the
same time the Kennedy Group was performing its
membership-roll review, Gholson organized a special
meeting of the General Council, which ended with Kennedy
being recalled as Chairman of the Tribal Council and
Gholson being placed in the position. Shortly thereafter,
Superintendent Burdick issued a decision recognizing
Gholson as the Council’s Chairman. Yet, less than a month
later, Superintendent Burdick changed course and issued a
decision recognizing the November 2006 Tribal Council.
In February 2009, Dale Morris, the Regional Director of
the Bureau of Indian Affairs took up the Beaman Group’s
appeal of Superintendent Burdick’s decision recognizing the
Kennedy Group’s November 2007 election. Director Morris
reversed the decision, concluding that the resolutions adopted
by the General Council in January 2008 exceeded its
authority and violated principles of due process. Director
Morris declined to recognize the Kennedy Group, the
Beaman Group, or the Gholson Group, and decided to
TIMBISHA SHOSHONE TRIBE V. USDOI 7
recognize instead the Tribal Council as it was constituted
following the November 2006 elections.
The Kennedy Group appealed from Director Morris’s
decision to then-Assistant Secretary of the Bureau of Indian
Affairs, Larry Echo Hawk. Secretary Echo Hawk issued a
decision on March 1, 2011, in which he made two holdings.
First, he affirmed Director Morris’s decision rejecting the
General Council’s January 2008 resolutions that purportedly
ratified the Kennedy Group’s November 2007 Tribal Council
election. Secretary Echo Hawk held that those resolutions
contravened the Tribe’s constitution because the General
Council attempted to replace Beaman as a member of the
Tribal Council when Beaman had not resigned, been recalled,
or removed from office. Second, given that there was no
validly elected Tribal Council, Secretary Echo Hawk
recognized the Gholson Group as the Tribal Council “for the
limited time of 120 days . . . for the limited purpose of
carrying out essential government-to-government relations
and holding a special election that complies with tribal law.”
He supported his recognition of the Gholson Group rather
than the Kennedy Group on two grounds: (1) more votes were
cast in the Gholson Group election than the Kennedy Group
election (137 to 74), and (2) the Kennedy Group’s exclusion
of the 74 members it disenrolled from voting rendered its
election “facially flawed” because the disenrollments did not
comply with either tribal law or federal law.
Following Secretary Echo Hawk’s decision, the Gholson
Group held a Tribal Council election. Gholson won election
as the Council’s Chairperson, receiving 159 votes, while
Kennedy received only 60. The Tribe then asked the
Department to recognize the election results. Assistant
Secretary Echo Hawk did so by issuing a second decision in
8 TIMBISHA SHOSHONE TRIBE V. USDOI
which he concluded that “the special election reflects the will
of the Tribe.”
The Kennedy Group challenged Secretary Echo Hawk’s
decisions in federal district court, arguing that Secretary Echo
Hawk’s reliance on certain principles of administrative law
was incorrect in a variety of ways. As a remedy, the Kennedy
Group did not ask the district court to place it in power, but
instead asked the district court to remand Secretary Echo
Hawk’s decisions “for further proceedings consistent with
federal law.”
The district court dismissed the Kennedy Group’s
complaint, concluding that, under Rule 19 of the Federal
Rules of Civil Procedure, the Tribe and the 2011-elected
Council members (all of whom were members of the Gholson
Group) were “indispensable parties that enjoy sovereign
immunity.” Essentially, the district court ruled that for the
Kennedy Group to present its claims, it needed to name both
the Tribe and the Tribal Council members as defendants (in
addition to the Department). But because neither had agreed
to waive sovereign immunity, they could not be joined as
defendants, and thus the court found it necessary to dismiss
the action.
Following the district court’s dismissal of the Kennedy
Group’s action on April 9, 2013, the Tribe adopted a new
constitution in 2014. The new constitution made changes to
the original document, but most importantly for our purposes,
the new constitution changes the criteria for membership in
the Tribe. Under the new constitution, a person is a member
of the Tribe if he or she meets any of the following criteria:
(a) is on a certain 1936 list of people with some Shoshone
blood, (b) is on a 1978 genealogy roll, (c) is a lineal
TIMBISHA SHOSHONE TRIBE V. USDOI 9
descendant of anyone qualifying under subsections (a) or (b),
and is at least one-fourth Indian (one-sixteenth of which must
be Shoshone blood), or (d) persons of Indian blood who are
adopted. It is undisputed that the 74 people that the Kennedy
Group disenrolled in 2008 would qualify as Tribal members
under the new constitution. The new constitution was
submitted for a Tribal vote by the Bureau of Indian Affairs.
The vote was 63 in favor of the new constitution, 22 against,
and 1 spoiled ballot. In certifying the election results, the
Bureau observed that even if all the votes of members that
Kennedy Group disputed as qualifying for membership were
ignored, the yes votes would have still won a majority. The
new constitution is still in force and the Kennedy group has
conceded that “the 2014 Constitution is not before” our panel.
II.
Before addressing the merits of the Kennedy Group’s
arguments, we must assure ourselves that we have
jurisdiction. Bender v. Williamsport Area Sch. Dist., 475 U.S.
534, 541 (1986) (“[E]very federal appellate court has a
special obligation to satisfy itself . . . of its own jurisdiction.”
(internal quotation marks omitted)). Our obligation to do so
stems from Article III of the Constitution, which confines
“[t]he judicial Power” to deciding cases and controversies.
U.S. CONST. art. III, § 2, cl. 1.
The case or controversy requirement is not a rule that
applies only at the outset of litigation. Instead, the Supreme
Court has explained that “[t]he rule in federal cases is that an
actual controversy must be extant at all stages of review, not
merely at the time the complaint is filed.” Steffel v.
Thompson, 415 U.S. 452, 459 n.10 (1974). Where an actual
controversy does not persist throughout litigation, “[a] case
10 TIMBISHA SHOSHONE TRIBE V. USDOI
becomes moot.” Already, LLC v. Nike, Inc., 133 S. Ct. 721,
726 (2013); Cook Inlet Treaty Tribes v. Shalala, 166 F.3d
986, 989 (9th Cir. 1999). The mootness doctrine does not turn
on whether the plaintiff continues to believe that some
unlawful conduct occurred. Already, LLC, 133 S. Ct. at 727
(explaining that a case may still be moot regardless of “how
vehemently the parties continue to dispute the lawfulness of
the conduct that precipitated the lawsuit”). Rather, “the case
is moot if the dispute ‘is no longer embedded in any actual
controversy about the plaintiffs’ particular legal rights.’” Id.
(quoting Alvarez v. Smith, 558 U.S. 87, 93 (2009)). Thus, we
have held that “[i]f there is no longer a possibility that an
appellant can obtain relief for his claim, that claim is moot
and must be dismissed for lack of jurisdiction.” Ruvalcaba v.
City of Los Angeles, 167 F.3d 514, 521 (9th Cir. 1999); see
Chafin v. Chafin, 133 S. Ct. 1017, 1023 (2013) (framing the
mootness inquiry by asking whether it has become
“impossible for a court to grant any effectual relief whatever
to the prevailing party” (internal quotation marks omitted)).
In cases where a plaintiff seeks declaratory relief, such as
this one, the test for mootness is “whether the fact alleged,
under all the circumstances, show that there is a substantial
controversy, between parties having adverse legal interests,
of sufficient immediacy and reality to warrant the issuance of
a declaratory judgment.” Gator.com Corp. v. L.L. Bean, Inc.,
398 F.3d 1125, 1129 (9th Cir. 2005) (en banc) (internal
quotation marks omitted). Or, “[s]tated another way, the
central question before us is whether changes in the
circumstances that prevailed at the beginning of litigation
have forestalled any occasion for meaningful relief.” Id.
(internal quotation marks omitted).
TIMBISHA SHOSHONE TRIBE V. USDOI 11
With that legal background, we now examine whether an
“actual controversy” remains in this case. The Department
argues that the Tribe’s adoption of a new constitution in 2014
moots this appeal.
As explained above, in 2014 the Bureau of Indian Affairs
conducted an election on a proposed constitution for the
Tribe. The proposed constitution obtained a substantial
majority of favorable votes (63 in favor versus only 22
opposed). Given the Kennedy Group’s concession that the
validity of the new constitution is not at issue in this case, we
assume its validity. See Reply Br. at 5; Oral Arg. at 5:35
(stating that the Kennedy Group concedes that “the facts of
the constitution are not before this court”). Since the new
constitution remains in effect, the issue then is whether it
precludes us from being able to provide the Kennedy Group
with “meaningful relief,” thus rendering the case moot.
Gator.com Corp., 398 F.3d at 1129.
Secretary Echo Hawk’s first decision hinged, in part, on
his conclusion that “the [2007] Kennedy election was facially
flawed by its exclusion of certain Tribe members.” He
explained that any decision to “bar[]” valid members “from
voting fatally invalidates an election”; the Kennedy Group
does not dispute this legal premise. This flaw led Secretary
Echo Hawk to recognize the Gholson Group for the limited
purpose of holding a special election. The Kennedy Group
has repeatedly argued that Secretary Echo Hawk’s analysis on
this point was mistaken because, it asserts, the 74 Tribe
members the Group excluded at its November 2007 election
were not actually members of the Tribe under the prior
constitution. But this argument misses the point. Even if we
assume that the Kennedy Group was correct that the 74
excluded individuals failed to meet the Tribe’s membership
12 TIMBISHA SHOSHONE TRIBE V. USDOI
qualifications (and so assume that Secretary Echo Hawk erred
in reasoning the opposite), the new constitution overhauled
those membership requirements. Under the new constitution’s
membership framework, there is no dispute that the 74
disenrolled individuals qualify for Tribal membership. Thus,
were we to remand for the Bureau of Indian Affairs to
reconsider its decision, there would be no possibility
whatsoever that the agency would change its reasoning as to
the disenrolled individuals because those people clearly
qualify for Tribal membership under the new constitution.
The Kennedy Group argues that the reasoning we apply
above is “circular” because it allows purportedly ineligible
members to vote on a new constitution which retroactively
cures their membership defects. In short, the group argues
that the new constitution is ineffective because unqualified
individuals voted in favor of it, so it cannot possibly moot
this case. But this argument ignores the fact that the new
constitution received a substantial majority of votes in its
favor, the Bureau of Indian Affairs certified it, and the
Kennedy Group has conceded that its validity “is not before”
us. Given all of that, on what authority can we decide the new
constitution is invalid? Our case law certainly does not
support doing so, since we have on many occasions cautioned
against intermeddling in tribal affairs. See, e.g., Williams v.
Gover, 490 F.3d 785, 791 (9th Cir. 2007) (observing that a
prior case 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 independent
political community” (internal quotation marks omitted)).
Moreover, as the Bureau of Indian Affairs observed, even if
we accepted the Kennedy Group’s argument that the
unqualified individuals who voted in favor of the new
TIMBISHA SHOSHONE TRIBE V. USDOI 13
constitution should not have been able to vote, the new
constitution still would have won a majority.
Thus, this is a moot case because a remand by us to the
Bureau of Indian Affairs to reconsider Secretary Echo
Hawk’s decisions would serve no purpose. Even if the agency
disagreed with Secretary Echo Hawk’s reasoning under the
prior constitution, it would have to apply the membership
criteria in the new constitution, which would lead it to
conclude that the Kennedy Group’s exclusion of 74 members
from voting in its November 2007 election rendered the
election unenforceable.
Because we conclude that the Tribe’s recent adoption of
a new constitution moots this appeal, we will not reach the
Department’s alternative arguments, including that
intervening tribal elections moot this appeal and that the
Kennedy Group lacks standing to challenge the Department
of Interior’s so-called “Rollback Rule.” Further, because this
appeal is now moot, we cannot address the Kennedy Group’s
argument that the district court abused its discretion in
dismissing the Group’s action under Rule 19 of the Federal
Rules of Civil Procedure.
III.
Article III of the Constitution limits federal courts to
deciding live cases or controversies. Under that constitutional
mandate, we must dismiss a case if “there is no longer a
possibility that an appellant can obtain relief for his claim.”
Ruvalcaba, 167 F.3d at 521. That rule forecloses our ability
14 TIMBISHA SHOSHONE TRIBE V. USDOI
to reach the merits in this case, because there is no chance
that a remand to the Bureau of Indian Affairs would make
any difference whatsoever.
APPEAL DISMISSED.