Shingle Springs Band of Miwok v. Cesar Caballero

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 22, 2021
• Docket: 20-16785
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 22 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SHINGLE SPRINGS BAND OF MIWOK No. 20-16785 INDIANS, D.C. No. Plaintiff-Appellee, 2:08-cv-03133-KJM-AC

v. MEMORANDUM* CESAR CABALLERO,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Kimberly J. Mueller, Chief District Judge, Presiding

Submitted October 20, 2021** San Francisco, California

Before: WATFORD and HURWITZ, Circuit Judges, and BAKER,*** International Trade Judge.

The Shingle Springs Band of Miwok Indians (the “Band”) sued Cesar

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable M. Miller Baker, Judge for the United States Court of International Trade, sitting by designation. Caballero, alleging that he had misappropriated the Band’s name for his own

purposes, in violation of the Lanham Act, 15 U.S.C. §§ 1114, 1125(a), the Anti-

Cybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d), and California law.

The district court dismissed Caballero’s counterclaims and denied a Rule 59(e)

motion. We affirm.

1. Caballero’s counterclaims were premised on the contention that the

Band had been improperly recognized by the federal government. The district court

correctly dismissed the counterclaims as presenting a nonjusticiable political

question. See United States v. Holliday, 70 U.S. 407, 419 (1865); Kahawaiolaa v.

Norton, 386 F.3d 1271, 1276 (9th Cir. 2004).

2. Cabellero’s Rule 59(e) motion claimed that newly discovered evidence

would overcome “the nonjusticiable political question rule.” This evidence

consisted of an exchange between Caballero and a superintendent from a regional

office of the Bureau of Indian Affairs, who explained that the regional office could

not act on Caballero’s request to recognize his group instead of the Band and referred

him to another branch of the Department of the Interior. Even assuming it was newly

discovered, this evidence does not affect the settled notion that tribal recognition is

reserved to the executive branch or Congress, not the courts. See Agua Caliente

Tribe of Cupeno Indians of Pala Rsrv. v. Sweeney, 932 F.3d 1207, 1215 (9th Cir.

2019).

2 3. The district court held Caballero in civil contempt first for violating a

preliminary injunction and later for violating a permanent injunction. Caballero

claims that the contempt citations must fall because we later reversed the summary

judgment on which the permanent injunction was based, see Shingle Springs Band

of Miwok Indians v. Caballero, 630 F. App’x 708 (9th Cir. 2015), and the Band

declined to pursue further injunctive relief on remand. But this argument does not

excuse his disobedience of the preliminary injunction, which was affirmed on direct

appeal. See Shingle Springs Band of Miwok Indians v. Caballero, 424 F. App’x 696

(9th Cir. 2011). And, after being cited for contempt for disobeying the permanent

injunction, Caballero filed a compliance report and was never sanctioned. His

compliance with the contempt order renders the appeal moot. See Davies v.

Grossmont Union High Sch. Dist., 930 F.2d 1390, 1394 (9th Cir. 1991).1

AFFIRMED.

1 Caballero’s motion to take judicial notice is GRANTED. The Band’s motion to take judicial notice is GRANTED.