Alto v. Black

Citation738 F.3d 1111
Decision Date26 December 2013
Docket NumberNo. 12–56145.,12–56145.
PartiesAlbert P. ALTO; Andre E. Alto; Anthony Alto; Brandon Alto; Christy Alto; Christopher J. Alto; Daniel J. Alto, Jr.; Daniel J. Alto, Sr.; Dominique N. Alto; Raymond E. Alto, Sr.; Raymond E. Alto; Raymond J. Alto, a Representative for Ben Alto, deceased, Marcus M. Alto, deceased, Marcus R. Alto, deceased, David Gomez, deceased, Susan Martinez, deceased; Robert Alto; Ronald Alto, Sr.; Victoria (Alto) Ballew; Angela (Martinez–Mcneal) Ballon; Juan J. Ballon; Rebecca (Alto) Ballon; Ruby Ballon; Janice J. Banderas; Peter Banderas; Victor Banderas; David A. Brokiewicz; Diana Brokiewicz; Patricia D. Brokiewicz; Monica (Sepeda) Diaz; Anthony Forrester; Dustin Forrester; Johanna (Alto) Forrester; Sarah Forrester; Ernest Gomez; Henrietta (Alto) Gomez; Kathleen M. Gomez; Humberto R. Green; Lydia (Alto) Green; Paul Anthony Green; Mary Jo (Alto) Hurtado; Justin A. Islas; Cynthia (Sepeda) Ledesma; Destiny C. Ledesma; Amanda M. Minges; Isabelle M. Sepeda; Lupe Sepeda; Deborah L. Vargas; Desiree Vargas; Jeremiah Vargas; Jessiah Vargas; Terry Weight; Jason Alto; Carol Edith Cavazos; Aimee Renae Diaz; Daniel Gomez; Lisa Gomez Huntoon; Christine Martinez; Marlene M. Martinez; Cassandra Sepeda; Pamela J. Alto, as Guardian ad litem for Marcus M. Green, a minor; Pedro Banderas, as Guardian ad litem for Reina A. Banderas, a minor; Dawn Castillo, as Guardian ad litem for Alexis N. Ledesma, a minor, and Jesse Ledesma, a minor; Maria A. Perez–Rolon, as Guardian ad litem for Roland J. Alto, Jr., a minor; Martin Diaz, as Guardian ad litem for Jessica Diaz, a minor, Toni L. Diaz, a minor, and Jacob Diaz, a minor; Donald Martinez, as Guardian ad litem for Donelle Martinez, a minor, Justine Martinez, a minor, and Sabrina Martinez, a minor, Plaintiffs–Appellees, v. Michael BLACK, Director of the Bureau of Indian Affairs of Department of Interior; Robert Eben, Superintendent of the Bureau of Indian Affairs, Southern California Agency, of Department of Interior; Kevin K. Washburn, Assistant Secretary of Indian Affairs of Department of Interior; Sally Jewell, Secretary of Department of Interior, Defendants–Appellees, and Doe, Defendants, 1 through 10, inclusive, Defendant, San Pasqual Band of Mission Indians, Intervenor–Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

738 F.3d 1111

Albert P. ALTO; Andre E. Alto; Anthony Alto; Brandon Alto; Christy Alto; Christopher J. Alto; Daniel J. Alto, Jr.; Daniel J. Alto, Sr.; Dominique N. Alto; Raymond E. Alto, Sr.; Raymond E. Alto; Raymond J. Alto, a Representative for Ben Alto, deceased, Marcus M. Alto, deceased, Marcus R. Alto, deceased, David Gomez, deceased, Susan Martinez, deceased; Robert Alto; Ronald Alto, Sr.; Victoria (Alto) Ballew; Angela (Martinez–Mcneal) Ballon; Juan J. Ballon; Rebecca (Alto) Ballon; Ruby Ballon; Janice J. Banderas; Peter Banderas; Victor Banderas; David A. Brokiewicz; Diana Brokiewicz; Patricia D. Brokiewicz; Monica (Sepeda) Diaz; Anthony Forrester; Dustin Forrester; Johanna (Alto) Forrester; Sarah Forrester; Ernest Gomez; Henrietta (Alto) Gomez; Kathleen M. Gomez; Humberto R. Green; Lydia (Alto) Green; Paul Anthony Green; Mary Jo (Alto) Hurtado; Justin A. Islas; Cynthia (Sepeda) Ledesma; Destiny C. Ledesma; Amanda M. Minges; Isabelle M. Sepeda; Lupe Sepeda; Deborah L. Vargas; Desiree Vargas; Jeremiah Vargas; Jessiah Vargas; Terry Weight; Jason Alto; Carol Edith Cavazos; Aimee Renae Diaz; Daniel Gomez; Lisa Gomez Huntoon; Christine Martinez; Marlene M. Martinez; Cassandra Sepeda; Pamela J. Alto, as Guardian ad litem for Marcus M. Green, a minor; Pedro Banderas, as Guardian ad litem for Reina A. Banderas, a minor; Dawn Castillo, as Guardian ad litem for Alexis N. Ledesma, a minor, and Jesse Ledesma, a minor; Maria A. Perez–Rolon, as Guardian ad litem for Roland J. Alto, Jr., a minor; Martin Diaz, as Guardian ad litem for Jessica Diaz, a minor, Toni L. Diaz, a minor, and Jacob Diaz, a minor; Donald Martinez, as Guardian ad litem for Donelle Martinez, a minor, Justine Martinez, a minor, and Sabrina Martinez, a minor, Plaintiffs–Appellees,
v.
Michael BLACK, Director of the Bureau of Indian Affairs of Department of Interior; Robert Eben, Superintendent of the Bureau of Indian Affairs, Southern California Agency, of Department of Interior; Kevin K. Washburn, Assistant Secretary of Indian Affairs of Department of Interior; Sally Jewell, Secretary of Department of Interior, Defendants–Appellees,
and
Doe, Defendants, 1 through 10, inclusive, Defendant, San Pasqual Band of Mission Indians, Intervenor–Appellant.

No. 12–56145.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted Feb. 11, 2013.
Filed Dec. 26, 2013.


[738 F.3d 1115]


Geoffrey D. Strommer (argued), Vernon L. Peterson, and Timothy C. Seward, Hobbs, Straus, Dean & Walker, LLP, Portland, OR, for Intervenor–Appellant.

Thor O. Emblem (argued) and Tracy L. Emblem, Law Offices of Thor O. Emblem, Escondido, CA, for Plaintiffs–Appellees.


John L. Smeltzer (argued), Ignacia S. Moreno, Assistant Attorney General, and Katherine J. Barton, Environment and Natural Resources Division, United States Department of Justice, Washington, D.C., for Federal Appellees.

Appeal from the United States District Court for the Southern District of California, Irma E. Gonzalez, Chief District Judge, Presiding.
Before: MARSHA S. BERZON and PAUL J. WATFORD, Circuit Judges, and JAMES G. CARR, Senior District Judge.*

OPINION

BERZON, Circuit Judge:

Our question concerns the propriety of a preliminary injunction issued with regard to a dispute over membership in an Indian tribe. “ ‘[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.’ ” Cahto Tribe of Laytonville Rancheria v. Dutschke, 715 F.3d 1225, 1226 (9th Cir.2013) (quoting Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 n. 32, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978)). In view of the importance of tribal membership decisions and as part of the federal policy favoring tribal self-government, matters of tribal enrollment are generally beyond federal judicial scrutiny. See Lewis v. Norton, 424 F.3d 959, 961 (9th Cir.2005). Here, however, the tribe's own governing documents vest the United States Department of Interior, Bureau of Indian Affairs (“BIA”), with ultimate authority over membership decisions. The issues in this case center on whether, and to what degree, this circumstance varies the usual judicial “hands off” policy for tribal membership decisions.

Specifically, we must decide whether the district court had jurisdiction to enjoin preliminarily the enforcement of a BIA order upholding the Band's decision to disenroll descendants of Marcus Alto, Sr. (“the Altos”), from the San Pasqual Band of Mission Indians (“the Band” or “the Tribe”), and whether such injunctive relief may issue in the Band's absence. We hold that the exercise of jurisdiction was proper, and that the Band is not a required party for the adjudication of the claims underlying the preliminary injunction, as they concern solely the propriety of final agency action. Accordingly, we affirm the district court's denial of the Band's motions to dismiss the claims on which the injunction rests and its consequent refusal to dissolve the preliminary injunction. And we remand to allow the district court formally to clarify its order in compliance with our understanding of it, as described below. We lack jurisdiction to review on interlocutory appeal the Band's motion to dismiss the Altos' other claims, on which the district court expressly deferred ruling.

[738 F.3d 1116]

I. FACTS & PROCEDURAL HISTORY
A. The Enrollment Dispute

The San Pasqual Band of Mission Indians is a federally recognized Indian tribe whose ancestors occupied the San Pasqual Valley, east of San Diego, California. Article III, section 2 of the Band's Constitution gives the Secretary of the Interior final authority over tribal enrollment decisions. See Const. & Bylaws of the San Pasqual Band of Mission Indians, art. III, § 2 (“Const. of the Band”). The Constitution also expressly incorporates federal regulations, adopted in 1960 and formerly codified at 25 C.F.R. §§ 48.1–48.15 (“the 1960 Regulations”), which addressed tribal enrollment criteria, the process for completing an initial membership roll, the procedures for keeping the membership roll current, and the purposes for which the roll was to be used.

The 1960 Regulations have since been removed from the Code of Federal Regulations,1 but the reference to them remains in the Tribe's Constitution. The parties agree that the substance of the otherwise defunct 1960 Regulations survive as tribal law and govern enrollment decisions for the Band.

In 1987, Marcus Alto, Sr. and his descendants applied to be added to the San Pasqual Band membership roll, on the basis of Marcus Alto Sr.'s claimed linear descent from Jose Alto and Maria Duro, both listed as members of the Band on the 1910 Census Roll.2 Under 25 C.F.R. § 48.5(b) (1960), “[d]escendants of Indians whose names appear as members of the Band on the Census Roll” are eligible for enrollment, provided they possess one-eighth or more degree of Indian blood of the Band and are not affiliated with any other tribe. The Altos' applications were adjudicated by the BIA's Superintendent of the Southern California Agency after Alto, Sr.'s death in 1988, resulting, in 1991, in a finding that the Altos were eligible for membership. The Band appealed the enrollment decision to the BIA's Assistant Secretary–Indian Affairs, who affirmed.

So stood the Altos' legal status until, in 2007, an individual member of the Band formally challenged Marcus Alto, Sr.'s enrollment before the Band's Enrollment Committee. The contention was that Alto, Sr. was the adoptive son of Jose Alto and Maria Duro, not their biological child, and therefore did not have the requisite degree of Indian blood to be enrolled as a member of the Band.3 The Committee voted to

[738 F.3d 1117]

disenroll Alto, Sr.'s descendants, and, after notifying the Altos, requested that the BIA Regional Director approve its disenrollment decision on the basis of the new evidence. See 25 C.F.R. § 48.5(b) (1960).

When the Regional Director denied the request, the Band appealed his decision to the Assistant Secretary—Indian Affairs. The Assistant Secretary reversed the decision of the Regional Director, issuing the 22–page 2011 Disenrollment Order challenged in this suit. Making his own findings of fact, the Assistant Secretary concluded that, applying the Band's membership criteria set forth in the 1960 Regulations, the Altos' names must be deleted from the Band's membership rolls because enrollment was based on inaccurate information regarding Marcus Alto, Sr.'s blood lineage.

The Altos thrice sought reconsideration of the Assistant Secretary's decision. After receiving no response, they filed the instant suit.

B. The Federal Litigation

The Altos sued the Assistant Secretary and other federal officials, all in their official capacities,4 and moved concurrently for a temporary restraining order and preliminary injunction. The complaint did not name the Band as a defendant.

The Altos' initial pleadings describe four claims for declaratory and injunctive relief.5 The first three claims seek the court's invalidation of the 2011 Disenrollment Order due to various alleged errors in the agency's decisionmaking. Specifically, the first claim asserts that the 1995 decision of the Assistant Secretary, upholding Marcus Alto, Sr.'s membership in the Band, precluded the Assistant Secretary's 2011 Disenrollment Order under the doctrine of res judicata; the second contends that the Assistant Secretary's decision violated the Altos' rights to procedural due process; and the third seeks reversal of the Disenrollment Order on the ground that it was arbitrary and capricious agency action.

The Administrative Procedure Act (“APA”) provides a right to judicial review of all “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. Although only the third claim is explicitly denominated as an APA claim in the complaint, the first three claims all involve challenges to the propriety of the BIA's decision. All three may therefore be fairly...

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