George v. Office of Navajo and Hopi Indian Relocation

• Court: District Court, D. Arizona
• Decided: June 5, 2025
• Docket: 3:24-cv-08102
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Rosita George, No. CV-24-08102-PCT-DGC

10 Plaintiff,

11 v. ORDER

12 Office of Navajo and Hopi Indian Relocation, 13 Defendant. 14 15 Plaintiff Rosita George, a member of the Navajo Nation, seeks judicial review of an 16 administrative decision by Defendant Office of Navajo and Hopi Indian Relocation 17 (“ONHIR”). Doc. 1. The parties have filed cross motions for summary judgment. 18 Docs. 12, 21-1. The issues are fully briefed and oral argument will not aid the Court’s 19 decision. See Fed. R. Civ. P. 78(b); LRCiv 7.2(f). For reasons stated below, the Court will 20 deny Plaintiff’s motion and grant ONHIR’s motion. 21 I. Background. 22 In 1882, President Chester A. Arthur set aside a 2.5-million-acre reservation for the 23 Hopi Nation and “such other Indians as the Secretary of the Interior may see fit to settle 24 thereon.” Bedoni v. Navajo-Hopi Indian Relocation Comm’n, 878 F.2d 1119, 1121 (9th 25 Cir. 1989). Members of the Navajo Nation subsequently settled on the reservation 26 alongside the Hopi. Id. Attempts to resolve resulting inter-tribal conflicts ultimately led 27 to the Navajo-Hopi Settlement Act of 1974. Id. The Act authorized a district court to 28 1 partition the reservation and created ONHIR’s predecessor to help relocate tribal members 2 who resided on land partitioned to the other tribe. Id. at 1121-22. 3 To be eligible for relocation benefits, a Navajo applicant has the burden of showing 4 that she was (1) a legal resident of the Hopi Partitioned Lands (“HPL”) on 5 December 22, 1974, and (2) a head of household on or before July 7, 1986. 6 25 C.F.R. § 700.147. A person who was not married in 1986, like Plaintiff, may prove she 7 was a “head of household” by showing that she “actually maintained and supported” 8 herself. 25 C.F.R. § 700.69(a)(2). ONHIR does not specify an income at which an 9 applicant actually maintains and supports himself or herself, but it has often held that “an 10 applicant who earn[s] at least $1,300 per year can make a prima facie showing of self- 11 supporting status.” Ambrose v. Off. of Navajo & Hopi Indian Relocation, No. CV-21- 12 08133-PCT-DLR, 2022 WL 3921115, at *3 (D. Ariz. Aug. 31, 2022); see also Benally v. 13 Office of Navajo & Hopi Relocation, No. 13-CV-8096-PCT-PGR, 2014 WL 523016, at *3 14 (D. Ariz. Feb. 10, 2014). 15 Plaintiff Rosita George applied for relocation benefits on January 13, 2009. 16 A.R. 24. ONHIR rejected her application, finding that she was not a head of household on 17 or before July 7, 1986. A.R. 56-57. The agency found insufficient evidence for Plaintiff’s 18 claim that she supported herself in 1985 by earning $1,500 in cash through selling Kachina 19 dolls and lamps. A.R. 56. Plaintiff appealed the decision (A.R. 63) and an Independent 20 Hearing Officer (“IHO”) held a hearing in August 2013 in which Plaintiff and others 21 testified. See A.R. 104-38. The IHO found that their testimony about Plaintiff’s work 22 selling Kachina dolls and lamps was not credible due to inconsistencies and lack of 23 corroborating evidence, and upheld ONHIR’s denial of relocation benefits. A.R. 170-73. 24 ONHIR entered a final agency action in her case on December 5, 2013. A.R. 176. 25 Plaintiff sought judicial review in September 2017. Doc. 1, CV-17-08200-PCT- 26 DLR. Her complaint appealed the final agency action denying her relocation benefits and 27 also claimed that ONHIR breached its trust obligations to manage and distribute relocation 28 funds. Id.; see also Bedoni v. Navajo-Hopi Indian Relocation Comm’n, 878 F.2d 1119, 1 1125 (9th Cir. 1989) (stating that ONHIR’s predecessor had a trust obligation). The district 2 court dismissed her trust obligations claim for lack of jurisdiction and granted summary 3 judgment to ONHIR on the benefits denial. Docs. 23, 47, CV-17-08200-PCT-DLR. 4 On appeal, the Ninth Circuit held that “the hearing officer erred in failing to evaluate 5 any of the evidence other than the testimony about the income from selling Kachina dolls,” 6 noting that the $1,300 income threshold was not an absolute rule and that an individual 7 making less may still qualify for relocation benefits if other evidence shows she was self- 8 supporting on or before July 7, 1986. George v. Off. of Navajo & Hopi Indian Relocation, 9 825 F. App’x 419, 421 (9th Cir. 2020). Other evidence offered by Plaintiff included that 10 she stopped living with her extended family in 1986, moved in with a friend in Flagstaff, 11 and was employed by Coconino County. Id. at 420. She also was not considered a 12 dependent by ONHIR when her father’s relocation benefits were determined. Id. at 421. 13 The Ninth Circuit directed the district court to remand the case for “the limited purpose of 14 weighing and considering this evidence in the first instance” without expressing any views 15 on its veracity or the proper outcome of Plaintiff’s case. Id.; see Doc. 53, CV-17-08200- 16 PCT-DLR. 17 On remand, ONHIR requested a hearing before the IHO to make additional 18 arguments about Plaintiff’s head-of-household status based on the evidence already in the 19 record, and Plaintiff requested a hearing to introduce additional evidence. A.R. 423, 429- 20 31. The IHO denied these requests, but allowed the parties to submit written arguments. 21 A.R. 449. On February 13, 2023, the IHO issued his remand decision. A.R. 698. It 22 included supplemental and superseding findings of fact that considered evidence beyond 23 Plaintiff’s income. A.R. 723-726. The IHO found that Plaintiff had not shown she 24 “actually supported and maintained herself” as a head of household before July 7, 1986 25 and denied her application for relocation benefits. A.R. 732. 26 Plaintiff now seeks judicial review of the remand decision. In Count I, she appeals 27 the denial of relocation benefits. Doc 1 at 10. In Count II, she alleges that ONHIR 28 1 breached its trust obligations and violated her Fifth Amendment due process rights by 2 delaying action to determine her benefits eligibility status. Id. at 11-12. 3 II. Summary Judgment Standard. 4 A reviewing court may reverse an ONHIR decision under the Administrative 5 Procedure Act (“APA”) if it is arbitrary, capricious, an abuse of discretion, contrary to law, 6 or unsupported by substantial evidence. 5 U.S.C. § 706(2)(A), (E); see Bedoni, 878 F.2d 7 at 1122. A decision is arbitrary and capricious if the agency “‘has relied on factors which 8 Congress has not intended it to consider, entirely failed to consider an important aspect of 9 the problem, offered an explanation for its decision that runs counter to the evidence before 10 the agency, or is so implausible that it could not be ascribed to a difference in view or the 11 product of agency expertise.’” O’Keeffe’s, Inc. v. U.S. Consumer Prod. Safety Comm’n, 12 92 F.3d 940, 942 (9th Cir. 1996) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. 13 Auto. Ins. Co., 463 U.S. 29, 43 (1983)). Substantial evidence is “more than a mere scintilla 14 but less than a preponderance; it means such relevant evidence as a reasonable mind might 15 accept as adequate to support a conclusion.” Chu v. Commodity Futures Trading Comm’n, 16 823 F.3d 1245, 1250 (9th Cir. 2016) (internal quotation marks and citation omitted). The 17 standard of review is deferential. The Court may not substitute its judgment for that of the 18 agency. River Runners for Wilderness v. Martin, 593 F.3d 1064, 1070 (9th Cir. 2010). 19 “[S]ummary judgment is an appropriate mechanism for deciding the legal question 20 of whether [ONHIR] could reasonably have found the facts as it did.” Laughter v. ONHIR, 21 No. CV-16-08196-PCT-DLR, 2017 WL 2806841, at *2 (D. Ariz. June 29, 2017) (internal 22 quotation marks and citation omitted). “[T]he focal point for judicial review [under the 23 APA] should be the administrative record already in existence, not some new record made 24 initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142 (1973). 25 III. Analysis. 26 Plaintiff argues for summary judgment because (1) the IHO did not follow proper 27 procedures on remand; (2) the IHO did not properly consider evidence indicating she was 28 living independently on or before July 7, 1986; (3) the IHO wrongly discredited testimony 1 about her income from the sale of Kachina dolls and lamps; and (4) ONHIR violated its 2 trust obligations and her Fifth Amendment due process rights by failing to determine her 3 eligibility for relocation benefits sooner. Doc. 12, 9-17. 4 A. Remand Procedure. 5 Plaintiff claims that the IHO did not follow proper procedures on remand. Id. at 8. 6 She cites Department of Homeland Security v. Regents of the University of California, 591 7 U.S. 1 (2020), which discusses how an agency should address a court’s remand. It can 8 either provide “a fuller explanation of the agency’s reason at the time of the agency action” 9 by elaborating on the determinative reason given for the action, or it can “deal with the 10 problem afresh” by taking new agency action. Id. at 20-21 (citations omitted). If the 11 agency chooses to elaborate on its original action, it is limited to expanding upon the 12 determinative reasons given and cannot provide new ones. Id. at 21. Plaintiff argues that 13 by denying her request for an evidentiary hearing and articulating new reasons for finding 14 she did not qualify as a head of household, the IHO impermissibly provided a post-hoc 15 rationalization that goes beyond the scope of the initial decision. Doc. 12 at 8. 16 Plaintiff’s argument is not supported by the administrative record. The remand 17 decision was not a post-hoc rationalization. The IHO did precisely what the Ninth Circuit 18 required — he considered evidence in the record identified by the Court of Appeals as 19 relevant to the head-of-household decision. See A.R. 698-732; George, 825 Fed. Appx. at 20 421 (“We therefore remand the case to the district court with instructions to remand the 21 case to the agency for the limited purpose of weighing and considering this evidence in the 22 first instance.”). This is distinguishable from Department of Homeland Security, where the 23 Secretary of Homeland Security issued a memorandum discussing her “understanding” of 24 the Department’s prior memorandum to rescind the Deferred Action for Childhood 25 Arrivals (DACA) program and providing additional reasons not articulated in the original 26 memorandum rather than issuing a new rescission memorandum. Dep’t of Homeland Sec., 27 591 U.S. at 14-15. 28 1 Plaintiff does not persuasively argue that a new evidentiary hearing was required. 2 The Ninth Circuit remanded for a “limited purpose” — to consider evidence already in the 3 record, other than Kachina dolls sales, in deciding whether Plaintiff was self-supporting 4 before July 7, 1986. George, 825 Fed. Appt. at 420.1 The IHO evaluated this evidence in 5 his remand decision, as discussed below. The Court cannot find that the IHO erred and 6 lacked substantial evidence when he evaluated existing evidence in the record. 7 B. Consideration of Non-Income Factors. 8 As directed by the Ninth Circuit, the IHO considered whether evidence in the record 9 other than Plaintiff’s Kachina doll sales demonstrated that she was self-supporting on or 10 before July 7, 1986. He found Plaintiff initially moved to Flagstaff to live with her sister 11 and extended family after graduating from high school. A.R. 723. While living with her 12 sister, she testified, her “sister provided everything for us” including food, rent, and 13 transportation. A.R. 719. Plaintiff tried to save money to live on her own, but was 14 unsuccessful. A.R. 723. These findings are supported by Plaintiff’s own testimony. 15 A.R. 719-20. 16 Plaintiff testified that she moved into a friend’s apartment in Flagstaff in June 1986 17 (A.R. 720), but the IHO found her testimony on this issue not credible because of 18 inconsistent statements about how long she lived there (id.). She testified that she lived 19 there for “at least a year,” but also that she moved back to her parents’ house only four 20 months later in October 1986. Id. She provided no testimony or other evidence that she 21 paid for rent or other living expenses while living with her friend. A.R. 720, 725. Thus, 22 the IHO found, the evidence did not support a finding that she was self-supporting on or 23 before July 7, 1986.2

24 1 This included evidence that “by July 7, 1986, she stopped living with her extended family, lived in an apartment that she shared with a roommate, and was employed by Coconino 25 County.” Id.

26 2 Plaintiff asserts that the Ninth Circuit made a factual finding that she was sharing an apartment in Flagstaff with a roommate in 1986, which the IHO incorrectly rejected. Doc. 27 18 at 14-15. But the Ninth Circuit stated only that Plaintiff offered evidence she lived in an apartment with a roommate. George, 825 F. App'x at 420. It did not comment on the 28 credibility of Plaintiff’s testimony or whether this factor should weigh in favor of a finding that she was self-supporting. Id. at 420-21. 1 The IHO further considered testimony that Plaintiff sometimes used her money to 2 buy items for her parents when she returned home for visits, such as toiletries and groceries. 3 A.R. 720. He found this testimony credible (id.), but that Plaintiff’s level of support was 4 not comparable to the ongoing support her sister provided to her and did not show she was 5 self-supporting. A.R. 720-21, 725. 6 The IHO also considered the fact that Plaintiff was not a dependent for her father’s 7 relocation benefits, which were awarded on May 8, 1987. A.R. 726. But the IHO rationally 8 found this was “not determinative as to whether Ms. George was self-supporting almost a 9 year earlier on July 7, 1986.” Id. 10 Plaintiff claims that the IHO’s remand decision “cherry picks” evidence, focusing 11 on factors that weigh against finding she was self-supporting and placing less emphasis on 12 supporting evidence. Doc. 12 at 10. The Court does not agree. The IHO decision was 13 thorough, considering evidence that supported her claim as well as evidence that detracted 14 from it. A.R. 714-728. 15 In short, the IHO considered the evidence in the record other than Plaintiff’s sales 16 of Kachina dolls and lamps, and explained why he found it insufficient to show she was 17 self-supporting. The Court cannot find that his determination was arbitrary and capricious 18 or unsupported by substantial evidence. 19 C. Consideration of Plaintiff’s Income. 20 Plaintiff’s motion revives her past argument that the IHO incorrectly found 21 testimony about her income from the sale of Kachina dolls and lamps not credible. Doc. 12 22 at 15-17. But the Ninth Circuit’s remand instructions were to consider factors other than 23 her income from those sales that might show she was self-supporting. George, 825 F. 24 App’x at 421. It did not find error in the IHO’s credibility findings and evaluation of the 25 evidence regarding her income. Plaintiff’s arguments are therefore irrelevant to this 26 Court’s consideration of whether ONHIR followed instructions on remand and whether the 27 IHO’s decision was arbitrary and capricious.3

28 3 Plaintiff asserts that the Ninth Circuit made a finding that she worked selling Kachina dolls and lamps, and that when the IHO did not find the evidence presented on this issue 1 What is more, the IHO thoroughly identified serious credibility issues with 2 Plaintiff’s claimed income from Kachina doll sales. These credibility issued included that: 3 (1) Plaintiff initially stated under penalty of perjury that she worked full-time at Arby’s in 4 Flagstaff in 1985 and 1986 (A.R. 699), and yet also testified that, in 1985 and until June 5 1986, she worked more than 40 hours per week selling Kachina dolls with her sister around 6 Arizona and in neighboring states (A.R. 714-15, 718); (2) she claimed that her sister 7 designed and handcrafted the dolls, but later testified they were made by her brother-in- 8 law, Donald Tsinnijinnie (A.R. 715); (3) she provided inconsistent testimony about how 9 much she made from the dolls sales, claiming variously that she made $200-$300 per week, 10 $200-$300 every other week, and $1,500 total in 1985 (A.R. 716-17); (4) she testified that 11 Mr. Tsinnijinnie had records of the Kachina doll business and her work but claimed she 12 did not know his whereabouts, while her aunt testified that Mr. Tsinnijinnie is still a well- 13 known artist who had a business near Page, Arizona at the time of the hearing (A.R. 716- 14 17); (5) Plaintiff never secured records of this employment despite Mr. Tsinnijinnie’s 15 apparent availability and the fact that ONHIR communicated with her several times about 16 the need to obtain corroborating evidence regarding the Kachina doll sales (A.R. 717); (6) 17 Plaintiff provided an inadequate explanation for her claim that she left the doll-sales work, 18 which she loved, for a lower-paying housekeeping job that was “hard work” (A.R. 718). 19 Based on this “conflicting information” and the “lack of detail and absence of any 20 documentation,” the IHO found that Plaintiff was “not credible as related to her alleged 21 ‘self-employment’ or other alleged work selling Kachina Dolls.” A.R. 718. The Court 22 cannot conclude this was arbitrary and capricious, an abuse of discretion, or contrary to 23 law.4 24 25 credible, it constituted reversible error. Doc. 12 at 16. This is incorrect. The Ninth Circuit 26 stated only that Plaintiff offered evidence of her work. George, 825 F. App'x at 420. 27 4 Plaintiff claims that the IHO acted contrary to agency guidance and case law when he relied on a lack of documentation for the Kachina sales income, but the IHO clearly did 28 not rely on this factor in isolation. It was one of many factors the IHO identified for his credibility finding. 1 Plaintiff argues that the IHO incorrectly applied the $1,300 income threshold to the 2 7-month period in 1986 and suggests that this amount should have been prorated instead. 3 Doc. 18 at 11. Plaintiff raised this argument for the first time in her reply brief, and the 4 Court therefore will not consider it. See United States v. Bunnell, No. CR-14-00119-PHX- 5 DGC, 2021 WL 212338, at *2 (D. Ariz. Jan. 21, 2021). 6 D. Trust Obligations and Due Process. 7 In Count II, Plaintiff claims that ONHIR breached its trust obligations and violated 8 her Fifth Amendment due process rights by delaying action to determine her benefits 9 eligibility status. Doc. 12 at 12. ONHIR responds that Plaintiff did not raise these 10 arguments during the administrative proceedings in her case and has therefore waived 11 them. Doc. 21-1 at 15. The Court agrees. As a general rule, if a petitioner fails to raise an 12 issue before an administrative tribunal, it cannot be raised on appeal from that tribunal. 13 Reid v. Engen, 765 F.2d 1457, 1460 (9th Cir. 1985); see also Herbert v. Off. of Navajo & 14 Hopi Indian Relocation, No. CV06-03014-PCT-NVW, 2008 WL 11338896, at *10 (D. 15 Ariz. Feb. 27, 2008) (applying the rule to an ONHIR case). 16 Plaintiff raised the same breach of trust obligations claim in her appeal of ONHIR’s 17 first denial of her relocation benefits. Doc. 1 at 9-10, CV-17-08200-PCT-DLR. The Court 18 dismissed this claim for lack of subject-matter jurisdiction, stating that because Plaintiff 19 had failed to raise her claim at the agency level there was no final agency action subject to 20 the Court’s review. Doc. 23 at 4, CV-17-08200-PCT-DLR. After reviewing the 21 administrative record, the Court finds that Plaintiff still has not asserted her breach of trust 22 obligation claim or her due process claim before ONHIR. Thus, there is no final agency 23 action on these claims that is reviewable by the Court. 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 IT IS ORDERED: 2 1. Plaintiff’s motion for summary judgment (Doc. 12) is denied. 3 2. Defendant’s cross-motion for summary judgment (Doc. 21-1) is granted. 4 3. The Clerk is directed to enter judgment consistent with this Order and 5 terminate the case. 6 Dated this 4th day of June, 2025. 7 Saul 6 Cou Dank & phel 10 . David G. Campbell Senior United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28