Wapato Heritage LLC v. United States

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 30, 2021
• Docket: 20-35357
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 30 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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

2 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

3 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.