Alturas Indian Rancheria v. David Bernhardt

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 25, 2023
• Docket: 19-16885
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 25 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ALTURAS INDIAN RANCHERIA; No. 19-16885 WENDY DEL ROSA, D.C. No. Plaintiffs-Appellants, 2:17-cv-01750-TLN-DMC

v. MEMORANDUM* DAVID BERNHARDT, Secretary of the United States Department of the Interior; AMY DUTSCHKE, Pacific Regional Director, Bureau of Indian Affairs; VIRGIL AKINS, Northern California Agency Superintendent, Indian Affairs; UNITED STATES OF AMERICA,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California Troy L. Nunley, District Judge, Presiding

Argued and Submitted December 8, 2022 San Francisco, California

Before: NGUYEN and SANCHEZ, Circuit Judges, and BOUGH,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Stephen R. Bough, United States District Judge for the Western District of Missouri, sitting by designation. Plaintiff Wendy Del Rosa, purporting to represent the federally recognized

Alturas Indian Rancheria tribe (“Tribe”) and herself (collectively, “plaintiffs”),

filed a complaint for declaratory and injunctive relief against members of the

Department of the Interior (“DOI”). During intratribal disputes regarding

governance and membership, DOI chose to recognize the last undisputed

governing body of the Tribe in 2012, which consisted of Wendy Del Rosa, Darren

Rose, and Phillip Del Rosa, for purposes of maintaining government-to-

government relations in contracting with the Tribe. Plaintiff Wendy Del Rosa,

who is part of one tribal faction, asks the court to order DOI to recognize a 2013

decision by the Tribe’s governing body removing Phillip Del Rosa, who is part of

the other faction, from holding voting and leadership positions in the Tribe. The

2013 decision was subsequently reversed by a different tribal governing body in

2014 led by the Phillip Del Rosa–Darren Rose tribal faction.

The district court found it lacked jurisdiction because adjudicating this case

would necessitate engaging in the intratribal faction dispute and essentially

choosing sides among the factions. We review a district court’s dismissal for lack

of subject matter jurisdiction de novo. Vaz v. Neal, 33 F.4th 1131, 1135 (9th Cir.

2022). We affirm.

“[T]he Supreme Court has uniformly recognized that one of the fundamental

aspects of tribal existence is the right to self-government.” Wheeler v. U.S. Dep’t

2 of Interior, Bureau of Indian Affs., 811 F.2d 549, 551 (10th Cir. 1987). The federal

government and federal courts have also encouraged tribal self-governance, and

“[federal courts] have stated that when a dispute is an intratribal matter, the Federal

Government should not interfere.” Id. Additionally, “[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,” Santa Clara Pueblo v. Martinez,

436 U.S. 49, 72 n.32 (1978), thus placing “issues of tribal membership . . .

generally beyond our review.” Cahto Tribe of Laytonville Rancheria v. Dutschke,

715 F.3d 1225, 1226 (9th Cir. 2013). Claims are therefore nonjusticiable where

litigants seek “a form of relief that the federal courts cannot provide, namely, the

resolution of the internal tribal leadership dispute.” In re Sac & Fox Tribe of

Mississippi in Iowa/Meskwaki Casino Litig., 340 F.3d 749, 763 (8th Cir. 2003).

Although DOI may sometimes need to determine what tribal government to

recognize in order to interact and contract with tribal governments, “even these

special situations should be resolved in favor of tribal self-determination and

against Federal Government interference.” Wheeler, 811 F.2d at 552; see also

White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143–44 (1980)

(“Ambiguities in federal law have been construed generously in order to comport

with these traditional notions of sovereignty and with the federal policy of

encouraging tribal independence.”).

3 Plaintiffs argue that deciding whether to order DOI to recognize the tribal

judgment removing Phillip Del Rosa from leadership would not require the court

to choose between the factions or delve into intratribal leadership and membership

disputes. This argument ignores that to decide whether to recognize the tribal

judgment removing Phillip Del Rosa from leadership, the court would have to

decide whether it was issued by a legitimate governing body of the Tribe.

Plaintiffs’ argument that deciding this issue would not require the court to wade

into intratribal leadership and membership disputes is also in tension with Wendy

Del Rosa’s arguments before the Interior Board of Indian Appeals that Darren

Rose was not a valid member of the Tribe. Against the backdrop of these

intratribal governance and membership disputes, the district court correctly found

that it lacked subject matter jurisdiction over plaintiffs’ claims.1

AFFIRMED.

1 DOI acknowledges that this court may exercise jurisdiction over a properly pled claim under the Administrative Procedure Act (“APA”). Our precedent recognizes that federal courts have jurisdiction to review final agency actions—even when such review implicates issues of tribal law. See, e.g., Aguayo v. Jewell, 827 F.3d 1213, 1223 (9th Cir. 2016); Alto v. Black, 738 F.3d 1111, 1124 (9th Cir. 2013). DOI’s decision to recognize a governing tribal body is reviewable as a final agency action under the APA. See Goodface v. Grassrope, 708 F.2d 335, 338 (8th Cir. 1983). Although plaintiffs invoke the APA, their claim does not seek review of the agency’s recognition decision. Plaintiffs instead ask the court to declare that a 2013 tribal decision removing Phillip Del Rosa holds greater authority than a 2014 tribal decision reinstating him. For the reasons explained, such a claim is not cognizable.