Decision Date02 April 1986
Docket NumberCiv. No. S-84-482 MLS.
Citation639 F. Supp. 165
CourtU.S. District Court — Eastern District of California
PartiesCOYOTE VALLEY BAND OF POMO INDIANS, Hopland Band of Pomo Indians, Karuk Tribe of California, and Wanda Carrillo, Plaintiffs, v. UNITED STATES of America: William Clark, as Secretary of the Interior; Patricia Simmons, as Tribal Operations Officer, Bureau of Indian Affairs, Washington, D.C. Office; Maurice Babby, Area Director, Bureau of Indian Affairs, Sacramento Area Office; Daniel H. Swaney, Superintendent, Northern California Agency, Bureau of Indian Affairs and Ronald Jaeger, Superintendent, Central California Agency, Bureau of Indian Affairs, Defendants.

Lester J. Marston, California Indian Legal Services, Ukiah, Cal., Henry J. Sockbeson, Native American Rights Fund, Washington, D.C., for plaintiffs.

Louis Demas, Asst. U.S. Atty., Sacramento, Cal., Pamela S. West, U.S. Dept. of Justice, Washington, D.C., for defendants.


MILTON L. SCHWARTZ, District Judge.

The court heard the parties' cross-motions for summary judgment on February 21, 1985. Plaintiffs were represented by Lester J. Marston and Henry J. Sockbeson. Defendants were represented by Pamela S. West and Louis A. Demas. Following oral argument, the court requested that the parties submit supplemental briefing by April 22, 1985. Having duly considered the respective positions of the parties as presented in their briefs and at oral argument, the court now renders its decision.


Plaintiffs are an individual Native American, Wanda Carrillo, and three Native American tribes, Coyote Valley Band of Pomo Indians, Hopland Band of Pomo Indians, and Karuk Tribe of California. All three tribes are federally recognized tribal entities which have a government-to-government relationship with the United States and are eligible for programs administered by the Bureau of Indian Affairs ("BIA"). See Federal Register, Vol. 46, No. 130 (July 8, 1981).

On April 9, 1984, plaintiffs brought this action seeking declaratory and injunctive relief against the United States of America, the Secretary of the Interior, and various officials of the BIA. Plaintiffs allege that defendants acted arbitrarily, capriciously, and in direct violation of federal law and their trust responsibility to plaintiffs by (1) unreasonably delaying the calling of secretarial elections on their draft constitutions under the Indian Reorganization Act of 1934 ("IRA"), 25 U.S.C. § 461 et seq.; (2) establishing an unwritten policy requiring BIA review and approval of IRA draft constitutions prior to authorizing elections; (3) failing to adopt uniform standards for reviewing and approving IRA constitutions; and (4) refusing to provide BIA benefits and services to plaintiffs until after the calling of IRA elections.

In their cross-motions for summary judgment, the parties present a question of first impression which requires the court to interpret provisions of the IRA as well as various regulations promulgated pursuant to that Act. At the heart of this controversy is the proper interpretation of 25 U.S.C. § 476 which authorizes any recognized Indian tribe to organize for its common welfare and to adopt an appropriate constitution by a majority vote of the adult members of the tribe.1 Tribal ratification of a draft constitution in such a manner cannot be accomplished until the Secretary of the Interior authorizes a special election.

Plaintiffs challenge the Secretary's practice of withholding authorization of special elections until after the completion of a lengthy process for the review and modification of proposed tribal constitutions by the BIA. They contend that the Secretary has delayed authorization of elections for several years from the time of the tribes' initial request for elections because the tribes did not willingly incorporate the BIA's suggested modifications into their draft constitutions.2

Plaintiffs maintain that, in order to be consistent with the statutory policy in favor of tribal self-government, section 476 of the IRA must be interpreted to impose upon the Secretary a mandatory, nondiscretionary duty to authorize elections within a reasonable time after a final request from an eligible tribe. It is their view that, while defendants may offer recommendations for the modification of draft constitutional provisions prior to elections, the Secretary has the discretion to approve or disapprove the constitution only after an election has been held and the constitution officially ratified by the majority vote of tribal members. Plaintiffs therefore assert that the Secretary's failure to call elections at this stage of the process violates defendants' trust responsibility to them under 25 U.S.C. § 476 of the IRA, regulations promulgated thereunder, and 5 U.S.C. § 706(2)(A) of the Administrative Procedure Act ("APA"). They also assert that the BIA's failure to publish its existing procedure for the pre-election review and approval of draft constitutions violates 5 U.S.C. §§ 552 and 553 of the APA.3

Defendants take the position that the Secretary has broad, unreviewable discretion to approve the draft constitution in all particulars before he authorizes an election under section 476. In the alternative, if secretarial discretion is reviewable, defendants argue that the Secretary's decision to withhold elections was neither arbitrary nor capricious. They maintain that section 476 authorizes the Secretary only to conduct elections on "appropriate" constitutions, i.e., those with provisions which conform with his interpretation of federal law. Elections, they argue, are too costly and should not be called unless the tribal constitution has received prior approval from the Secretary. Otherwise the election would be a meaningless formality because the Secretary would certainly disapprove the constitution after tribal members had ratified it.


Federal Rule of Civil Procedure 56(c) provides that summary judgment may be granted when it is demonstrated that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Questions of statutory construction and legislative history present legal questions which are properly resolved by summary judgment. State of Oklahoma ex rel. Dept. of Human Services v. Weinberger, 741 F.2d 290, 291 (10th Cir.1983); Int'l Ass'n of Machinists v. Texas Steel Co., 538 F.2d 1116, 1119 (5th Cir.1976), cert. denied, 429 U.S. 1095, 97 S.Ct. 1110, 51 L.Ed.2d 542 (1977); Asuncion v. District Director, INS, 427 F.2d 523, 524 (9th Cir.1970); Schlothan v. Territory of Alaska, 276 F.2d 806, 815 (9th Cir.), cert. denied, 362 U.S. 990, 80 S.Ct. 1079, 4 L.Ed.2d 1022 (1960).

The parties in this case filed a voluminous administrative record and numerous depositions, exhibits, and declarations to support their respective positions. These documents were offered to substantiate various factual allegations regarding, inter alia, plaintiffs' status as federally recognized Indian tribes, bands, or "entities," the composition of the tribes' governing bodies, the extent of plaintiffs' landholdings, the correspondence between the parties, the length of time involved in the review process, and the substance of the BIA's requested constitutional modifications.

The court emphasizes that it is confining its analysis to the narrow issue of whether the Secretary has a nondiscretionary duty to hold an IRA election within a reasonable time after a final request from an eligible tribe. This is a question of law, the resolution of which does not depend on an evaluation of the parties' factual allegations. The court does not purport to resolve, at this time, any disputed facts regarding the legitimacy of the plaintiff tribes' governing bodies, the nature and extent of tribal landholdings, or the legal validity of the specific constitutional modifications requested by the BIA. Thus, this is an appropriate case for summary judgment.


Plaintiffs allege several alternative bases of federal jurisdiction: the APA, 5 U.S.C. § 701 et seq., and 28 U.S.C. §§ 1331, 1337, 1361, and 1362.4

Among the statutes cited by plaintiffs, only 5 U.S.C. § 702 of the APA provides for a specific waiver of the United States' sovereign immunity. See McCartin v. Norton, 674 F.2d 1317, 1321 (9th Cir.1982); Beller v. Middendorf, 632 F.2d 788, 796-97 (9th Cir.1980), cert. denied, 452 U.S. 905, 101 S.Ct. 3030, 69 L.Ed.2d 405 (1981). There is, however, no independent grant of federal jurisdiction under the APA. Califano v. Sanders, 430 U.S. 99, 104-08, 97 S.Ct. 980, 983-86, 51 L.Ed.2d 192 (1977); McCartin, 674 F.2d at 1319. Plaintiffs must therefore look to other statutes which do provide independent subject matter jurisdiction.5

The court finds that the statutes conferring federal jurisdiction in this area are 28 U.S.C. §§ 1331, 1361 and 1362. Since the success or failure of plaintiffs' claims depends on an interpretation of federal law, namely 25 U.S.C. § 476 and its accompanying regulations, federal question jurisdiction under section 1331 exists. Gully v. First Nat'l Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936); cf. Boe v. Fort Belknap Indian Community, 642 F.2d 276, 279 (9th Cir.1981). Insofar as plaintiffs allege that the Secretary owed them a mandatory duty under section 476 to call an election and assuming that no other adequate remedy is available, jurisdiction under the mandamus statute may also be appropriate. See, e.g., Fallini v. Hodel, 783 F.2d 1343, 1345 (9th Cir.1986); Rockbridge v. Lincoln, 449 F.2d 567, 573 (9th Cir.1971). Finally, since three plaintiffs are Indian tribes or bands with governing bodies recognized by the Secretary, they also qualify to bring suit under section 1362.6 The scope of section 1362 has been construed to be as broad as that of section 1331. Mescalero Apache Tribe v. Burgett Floral Co., 503 F.2d 336, 338 (10th...

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