708 F.2d 1399 (9th Cir. 1983), 82-3096, Holloman v. Watt

Docket Nº82-3096.
Citation708 F.2d 1399
Party NameSteven Mark HOLLOMAN; Michael James Holloman; David Emerson, Jr.; and Jeffrey Todd Emerson; Minor, by his father and next friend, David Emerson, Plaintiffs-Appellees, v. James WATT, Secretary of the Department of Interior; Forest Girard, Assistant Secretary of the Bureau of Indian Affairs; Sidney Mils, Acting Commissioner of the Bureau of Indian Af
Case DateJune 20, 1983
CourtUnited States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1399

708 F.2d 1399 (9th Cir. 1983)

Steven Mark HOLLOMAN; Michael James Holloman; David

Emerson, Jr.; and Jeffrey Todd Emerson; Minor,

by his father and next friend, David

Emerson, Plaintiffs-Appellees,

v.

James WATT, Secretary of the Department of Interior; Forest

Girard, Assistant Secretary of the Bureau of Indian Affairs;

Sidney Mils, Acting Commissioner of the Bureau of Indian

Affairs; United States Department of Interior; Bureau of

Indian Affairs, a subdivision of the United States

Department of Interior, Defendants-Appellants.

No. 82-3096.

United States Court of Appeals, Ninth Circuit

June 20, 1983

Argued and Submitted Jan. 6, 1983.

Page 1400

Kerry L. Pickett, Pickett & Pickett, Spokane, Wash., for plaintiffs-appellees.

Claire L. McGuire, Dept. of Justice, Washington, D.C., for defendants-appellants.

Appeal from the United States District Court for the Eastern District of Washington.

Before BROWNING, Chief Judge, and FLETCHER and PREGERSON, Circuit Judges.

PER CURIAM:

The government appeals a judgment awarding damages to appellees for loss of tribal privileges arising out of acts of officials of the Bureau of Indian Affairs. We reverse. Appellees failed to carry their burden of showing congressional intent to waive the United States' sovereign immunity.

Appellees, the Holloman brothers and their cousins, the Emerson brothers, applied for enrollment as members of the Colville Indian Tribe in 1966. After reviewing the blood degree quantums of appellees' ancestors as listed on the 1937 Tribal roll, the Tribal Council found each appellee possessed the requisite one-fourth degree Colville blood, and enrolled each in the Tribe.

The Bureau of Indian Affairs (BIA) learned from a subsequent application for enrollment by a distant cousin of appellees that there was a discrepancy in the blood degree of one of appellees' common ancestors. Based upon the new information, the BIA determined that appellees lacked the requisite one-fourth degree Colville blood and so informed the Tribal Council. The Tribe took no action, and the BIA continued to make per capita and dividend payments to appellees from the funds held in trust by the United States for the benefit of Tribal members. Three years later the BIA again informed the Tribal Council that appellees were not eligible "for membership enrollment with the Colville Tribe and action should be taken by the [Tribal] Business Council to remove their names from the roll as they are not eligible for future payments

Page 1401

made to members of the Tribe." Neither the BIA nor the Tribe gave appellees notice of the enrollment problem. The BIA discontinued per capita and dividend payments to appellees. Three years later the Tribal Council gave appellees notice and a hearing on their eligibility for continued enrollment. One year later the Council disenrolled appellees from the Tribe.

In 1979 appellees brought this suit against the Department of the Interior, the Secretary of the Interior, the BIA, the Assistant Secretary of the BIA and the Commissioner of Indian Affairs (collectively referred to as "the government"). The complaint alleged that by discontinuing per capita and dividend payments without notice and hearing the government exceeded its statutory authority and violated appellees' due process rights; and, by instructing the Council to disenroll appellees, the government caused appellees to lose tribal privileges, including tribal employment preference, wood-cutting rights, hunting and fishing rights, education grants, cultural identification and opportunities to purchase tribal lands and to take loans from the Tribe. Appellees sought restitution of per capita and dividend payments and damages for loss of tribal privileges.

During trial the BIA discovered and corrected another error on the 1937 Tribal roll. This change resulted in a determination that appellees were eligible for tribal membership and repayment of withheld per capita and dividend payments. The Council considered the new evidence and re-enrolled appellees in the Tribe. The magistrate before whom the case was tried ordered restitution...

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