Wapato Heritage LLC v. United States

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 30 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAUL GRONDAL, a Washington resident; No. 20-35357
MILL BAY MEMBERS ASSOCIATION,
INC., a Washington non-profit corporation, D.C. No. 2:09-cv-00018-RMP
Plaintiffs-Appellees,
MEMORANDUM*
v.
UNITED STATES OF AMERICA; U.S.
DEPARTMENT OF THE INTERIOR;
BUREAU OF INDIAN AFFAIRS;
CONFEDERATED TRIBES OF THE
COLVILLE RESERVATION,
Defendants-Appellees,
v.
WAPATO HERITAGE LLC; GARY
REYES,
Defendants-Appellants,
and
FRANCIS ABRAHAM; PAUL G.
WAPATO, Jr.; KATHLEEN DICK;
DEBORAH BACKWELL; CATHERINE
GARRISON; MARY JO GARRISON;
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
ENID T. WIPPEL; LEONARD WAPATO;
ANNIE WAPATO; JUDY ZUNIE;
JEFFREY M. CONDON; VIVIAN
PIERRE; SONIA W. VANWOERKOM;
ARTHUR DICK; HANNAH RAE DICK;
FRANCIS J. REYES; LYNN K. BENSON;
JAMES ABRAHAM; RANDY
MARCELLAY; PAUL G. WAPATO, Jr.;
CATHERINE L. GARRISON; MAUREEN
M. MARCELLAY; LEONARD M.
WAPATO; MIKE MARCELLAY; LINDA
SAINT; STEPHEN WAPATO; MARLENE
MARCELLAY; DWANE DICK; GABE
MARCELLAY; TRAVIS E. DICK;
HANNAH DICK; JACQUELINE L.
WAPATO; DARLENE MARCELLAY-
HYLAND; ENID T. MARCHAND; LYDIA
A. ARNEECHER; GABRIEL
MARCELLAY; MIKE PALMER;
SANDRA COVINGTON,
Defendants.
Appeal from the United States District Court
for the Eastern District of Washington
Rosanna Malouf Peterson, District Judge, Presiding
Argued and Submitted August 9, 2021
Seattle, Washington
Before: BEA, BRESS, and VANDYKE, Circuit Judges.
Appellants Wapato Heritage, LLC and Gary Reyes challenge the district
court’s March 26, 2020, interlocutory order finding that the government was not
required, under 25 U.S.C. § 175, to provide or pay for independent counsel for
unrepresented individual allottees of the Moses Allotment 8 (“unrepresented
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allottees”). We do not address what demands 25 U.S.C. § 175 does or does not place
on the government because we hold that appellants are not entitled to any relief under
that statute.
Whether a given statute provides a given plaintiff a cause of action is a
“question of statutory interpretation.” Lexmark Int’l, Inc. v. Static Control
Components, Inc., 572 U.S. 118, 129 (2014). Here, that statutory analysis reveals
that neither Wapato Heritage nor Reyes can bring a claim under § 175 on behalf of
the unrepresented allottees.
The text of § 175’s text reads: “In all States and Territories where there are
reservations or allotted Indians the United States attorney shall represent them in all
suits at law and in equity.” That text discusses whether the United States attorney
shall represent them, referring back to the “allotted Indians” mentioned earlier in the
provision. But Wapato Heritage, LLC, a corporation, does not qualify as an “allotted
Indian[].” So Wapato Heritage has no rights whatsoever under § 175 and no ability
to seek representation for the unrepresented allottees. And while Reyes was an
allotted Indian in the past, he is currently represented by counsel and seeks to
vindicate not his own § 175 rights but those of the unrepresented allottees. Nothing
in § 175’s text or anywhere else suggests that Reyes may use it to enforce the rights
of other “allotted Indians” besides himself. Cf. United States v. Harding, 864 F.3d
961, 964–65 (8th Cir. 2017) (holding that a “defendant lacks standing to challenge
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the district court’s decision” on whether to appoint counsel for another witness based
on that other witness’s Fifth Amendment right against self-incrimination); United
States v. Partin, 601 F.2d 1000, 1005–06 (9th Cir. 1979) (holding that defendants
have no standing to appeal based on the government’s interference with a co-
defendant’s Sixth Amendment right to counsel), abrogated on other grounds by
Wheat v. United States, 486 U.S. 153 (1988); Fed. R. Civ. P. 17(a)(1) (listing the
types of parties who may “sue in their own names without joining the person for
whose benefit the action is brought”); contra, e.g., 28 U.S.C. § 2242 (authorizing
applications for writs of habeas corpus by “someone acting in . . . behalf” of the
“person for whose relief” the writ is intended).
We thus AFFIRM the decision below.
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