Williams v. Gover

• Decision Date: 20 June 2007
• Docket Number: No. 04-17482.,04-17482.
• Citation: Williams v. Gover, 490 F.3d 785 (9th Cir. 2007)
• Parties: Danny L. WILLIAMS; Beverly A. Clark-Miller; Freddie A. Gramps, Jr.; Carrie Jean Pedrini-Pierson; Christine Marie Dobis; Cindy Lusk Wicklander; Claudia Gramps; Gary Lee Seek; Jacqueline Marie Conn; Davida E. Gramps; Julia Jarvis Wicklander; Lavonne Tracy Woods Gramps; Lawrence Ira Seek; Rhonda Leann Corkin; Richard Wicklander; Ricky Dale Gramps; Ronald Seek; Rose Shumard Wicklander; Roxanne Gramps; Russell D. Gramps; Susanne Gramps; Teresa Marie Liske; Vivian Sebring; Junior Dale Edwards; Shirley Faye Underwood; Cherrie Marie Clark; Teresa Juanita Clark, Coy Eugene Clark; Clinton Wayne Staton; Georgia May Burdick Georgia May Burdick Honroth; Robert Allen Honroth; Robert Stanley Roth; Clifford Miles Burdick; Michelle Rene Burdick Michelle Rene' Burdick Shields; Pamela Sue Burdick Pamela Sue Burdick Terry; Richard Miles Burdick; Bonita Lynn Burdick Chambers; George Ronad Burdick; Georgina Danyel Burdick; Kasey Brook Burdick; Neville Brand Burdick; Emma Jean Timmons Tuttle; Lawrence Tuttle; Karen Tuttle Wesr; Raymond Tuttle; David Fields; Ellen Seek; Larry Graqces, Sr.; Richard W. Graves; Charles M. Graves; Pearl W. Wagner; Melba Ellen Razo; Charles Wesley Graves; Larry Graves, Jr.; Fran Hawkins; Lori Watkins; Leanna Graves; Kim Graves; Ronald Ardel Graves; Joann Parsons; Janice Kaye Wright; Cristina Lynn Wilson; Sue Brown Denise; Rickie Dean Wilson; David Lee Wilson, Plaintiffs-Appellants, v. Kevin GOVER, Defendant, and Clay Gregory,<SMALL><SUP>*</SUP></SMALL> Regional Director of the Pacific Region of the Bureau of Indian Affairs; Troy Burdick,<SMALL><SUP>**</SUP></SMALL> Superintendent of the Central California Agency of the Bureau of Indian Affairs; United States of America; Aurene Martin, as Acting Assistant Secretary of the Interior for Indian Affairs; Neal McCaleb, as Assistant Secretary of the Interior for Indian Affairs, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

490 F.3d 785

Danny L. WILLIAMS; Beverly A. Clark-Miller; Freddie A. Gramps, Jr.; Carrie Jean Pedrini-Pierson; Christine Marie Dobis; Cindy Lusk Wicklander; Claudia Gramps; Gary Lee Seek; Jacqueline Marie Conn; Davida E. Gramps; Julia Jarvis Wicklander; Lavonne Tracy Woods Gramps; Lawrence Ira Seek; Rhonda Leann Corkin; Richard Wicklander; Ricky Dale Gramps; Ronald Seek; Rose Shumard Wicklander; Roxanne Gramps; Russell D. Gramps; Susanne Gramps; Teresa Marie Liske; Vivian Sebring; Junior Dale Edwards; Shirley Faye Underwood; Cherrie Marie Clark; Teresa Juanita Clark, Coy Eugene Clark; Clinton Wayne Staton; Georgia May Burdick Georgia May Burdick Honroth; Robert Allen Honroth; Robert Stanley Roth; Clifford Miles Burdick; Michelle Rene Burdick Michelle Rene' Burdick Shields; Pamela Sue Burdick Pamela Sue Burdick Terry; Richard Miles Burdick; Bonita Lynn Burdick Chambers; George Ronad Burdick; Georgina Danyel Burdick; Kasey Brook Burdick; Neville Brand Burdick; Emma Jean Timmons Tuttle; Lawrence Tuttle; Karen Tuttle Wesr; Raymond Tuttle; David Fields; Ellen Seek; Larry Graqces, Sr.; Richard W. Graves; Charles M. Graves; Pearl W. Wagner; Melba Ellen Razo; Charles Wesley Graves; Larry Graves, Jr.; Fran Hawkins; Lori Watkins; Leanna Graves; Kim Graves; Ronald Ardel Graves; Joann Parsons; Janice Kaye Wright; Cristina Lynn Wilson; Sue Brown Denise; Rickie Dean Wilson; David Lee Wilson, Plaintiffs-Appellants, v. Kevin GOVER, Defendant, and Clay Gregory,^* Regional Director of the Pacific Region of the Bureau of Indian Affairs; Troy Burdick,^** Superintendent of the Central California Agency of the Bureau of Indian Affairs; United States of America; Aurene Martin, as Acting Assistant Secretary of the Interior for Indian Affairs; Neal McCaleb, as Assistant Secretary of the Interior for Indian Affairs, Defendants-Appellees.

No. 04-17482.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 14, 2006.

Filed June 20, 2007.

Dennis G. Chappabitty, Sacramento, CA, for the appellants.

Kristi C. Kapetan (argued), Assistant U.S. Attorney, Fresno, CA, and Debora G. Luther (briefed), Assistant U.S. Attorney, Sacramento, CA, for the appellees.

Appeal from the United States District Court for the Eastern District of California; William B. Shubb, Chief District Judge, Presiding. D.C. No. CV-01-02040-WBS.

Before: ANDREW J. KLEINFELD and SIDNEY R. THOMAS, Circuit Judges, and RONALD B. LEIGHTON,^*** District Judge.

KLEINFELD, Circuit Judge.

This case is controlled by the proposition that an Indian tribe has the power to decide who is a member of the tribe.

Facts

Plaintiffs claim that they are descended from people who were named as members of the Mooretown Rancheria Indian tribe in either a 1915 census or a 1935 tribal voter list. "Rancherias are numerous small Indian reservations or communities in California, the lands for which were purchased by the Government (with Congressional authorization) for Indian use from time to time in the early years of [the twentieth] century — a program triggered by an inquiry (in 1905-06) into the landless, homeless or penurious state of many California Indians."¹ In 1958, the Mooretown Rancheria consisted of two separated 80 acre parcels of land in Butte County, California, near Oroville.

Congress adopted the California Rancheria Termination Act in 1958 in order to distribute rancheria lands to individual Indians.² The Act provided for the conveyance of rancheria assets, with unrestricted title, to the individual Indians living there, if a majority of the Indians voting approved. Before conveyance, the Act required the government to survey the land owned by the rancheria, construct or improve the roads serving the rancheria, install or rehabilitate irrigation, sanitation, and domestic water systems, and exchange land held in trust for the rancheria.³ The Indians who received the assets would not thereafter be entitled to the services provided by reason of Indian status.⁴

Two families occupied the two 80 acre parcels constituting the Mooretown Rancheria. In 1959, the families voted for termination of Mooretown Rancheria and distribution of its land under the Act, and the government distributed the parcels to the members of those families. In 1979, members of thirty-four terminated tribes, including Mooretown Rancheria, filed a class action seeking restoration of tribal status for rancherias. In 1983, the government entered into a consent decree in a class action, restoring the Mooretown Rancheria as a federally-recognized rancheria and Indian tribe.⁵

The Bureau of Indian Affairs ("BIA") invited the plaintiffs and class members at Mooretown Rancheria to a meeting in June 1984. At the meeting, BIA officers explained that each individual landowner could reconvey his or her land to the United States to be held in trust (avoiding taxes and local regulation but subjecting the land to some federal control), or not, as they chose, and that the tribe could form a government. No one chose to put their land in trust and the tribal members at the meeting chose not to organize a tribal government.

Three years later, sentiments had changed. In October 1987, tribal members organized a tribal meeting. They invited all direct descendants of the people who lived at Mooretown Rancheria when it was terminated in 1959, the BIA, and anyone else interested in attending. The BIA did not organize the meeting and no one from the BIA attended the meeting. The lead plaintiff in this case did attend the meeting. At the October 1987 meeting, Mooretown Rancheria decided to organize a tribal government. Soon afterward, Mooretown Rancheria adopted a tribal constitution. According to the constitution, tribal membership consisted of the four people to whom Mooretown Rancheria was distributed upon termination in 1959, their dependents, and lineal descendants of those distributees and their dependents.

The problem that led to this lawsuit is that the plaintiffs got squeezed out of full tribal membership. A 1998 tribal resolution further narrowed full tribal membership to "only those members who are direct lineal descendants of the four distributees." Other tribal members were "reclassified" by the resolution as "adoptee members." Thus, although the plaintiffs are Concow-Maidu Indians descended from people who have lived at Mooretown Rancheria for a very long time, they lack the rights of full members of the Mooretown Rancheria tribe. This does not affect their status as Indians for the purpose of federal governmental benefits conferred on Indians. But it does affect their tribal voting rights. Depending on tribal decisions, it may also affect their right to a share of the revenues generated by tribal casinos and other tribal activities.

Plaintiffs sued officials of the Department of the Interior, Bureau of Indian Affairs. They did not sue Mooretown Rancheria. The district court dismissed the case on a motion to dismiss and for summary judgment, and plaintiffs appeal.

Analysis

Plaintiffs have an insuperable problem with their case. An Indian tribe has the power to define membership as it chooses, subject to the plenary power of Congress.⁶ Nor need the tribe, in the absence of Congressional constraints, comply with the constitutional limitations binding on federal and state governments when it exercises this and other powers. In 1978, the Supreme Court held in Santa Clara Pueblo v. Martinez that "[a]s separate sovereigns pre-existing the Constitution, tribes have historically been regarded as unconstrained by those constitutional provisions framed specifically as limitations on federal or state authority."⁷ Even where there is some legal constraint on tribes, "`without congressional authorization,' the `Indian Nations are exempt from suit.'"⁸ "[T]he tribes remain quasi-sovereign nations which, by government structure, culture, and source of sovereignty are in many ways foreign to the constitutional institutions of the Federal and State governments."⁹

Doubtless because of these well-established limitations, plaintiffs style their complaint as against the BIA, rather than the tribe. They have two theories.

First, plaintiffs argue that the BIA violated the Administrative Procedure Act by adopting a "rule" without the required notice and comment procedure.¹⁰ The district court rejected this argument, finding that the BIA never promulgated any "rule." We agree.

It is unclear what "rule" plaintiffs suppose that the BIA promulgated. Plaintiffs note that when the Hardwick stipulated class action judgment restored a number of terminated rancherias, BIA memoranda mentioned using the lists of people to whom the rancherias were distributed upon termination, their dependents, and their lineal descendants as a starting point for determining the tribal membership rolls. If the BIA had promulgated such a rule providing for tribal membership, it putatively would impair the claims of plaintiffs in this case, who are descendants of people who appear in the 1915 tribal census and 1935 tribal voter roll, but are not descendants of the distributees.

But the BIA carefully avoided promulgating any such rule or policy, respecting the right of the various restored rancherias to define their own memberships. In 1984, the BIA invited the known Hardwick plaintiffs and class members to a meeting where it told them about the Hardwick settlement and offered to help them form a tribal government, if they chose to do so. The eleven people who came to the Mooretown Rancheria meeting chose not to organize a formal government. In 1987, Mooretown Rancheria invited the BIA — not the other way around — to an "open meeting," where the Rancheria organized a tribal roll. The invitation, apparently from a member of Mooretown Rancheria, was addressed to direct descendants of the four distributees, but expressly stated that the meeting was "open" and "anyone interested in attending is welcome."

No one from the BIA attended the 1987 meeting....