United States District Court, S.D. California
July 21, 2004.
FRANK TAYLOR, JANET TAYLOR, KENNETH SMITH, SHERI SMITH, ELIZABETH ANN BAAY, DEBORAH MORETTI, Plaintiffs,
BUREAU OF INDIAN AFFAIRS, Defendant.
The opinion of the court was delivered by: LARRY BURNS, Magistrate Judge
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
Defendant Bureau of Indian Affairs ("BIA") brought a motion to
dismiss the complaint pursuant to Federal Rule of Civil Procedure
12(b)(6) and (7) for failure to state a claim upon which relief
can be granted and for failure to join a party under
Rule 19 respectively. Plaintiffs opposed the motion, and the BIA replied.
For reasons stated below, the Court finds that Plaintiffs failed
to join a party indispensable to a large part of their claims,
and failed to state a cause of action pursuant to the Indian
Civil Rights Act and for a Fifth Amendment due process violation.
Accordingly, the BIA's motion to dismiss is GRANTED, and
Plaintiffs are granted LEAVE TO AMEND the complaint with
respect to the alleged due process violation only.
FACTUAL AND PROCEDURAL BACKGROUND*fn1
Plaintiffs brought this action pursuant to the Administrative
Procedures Act ("APA"), Title 5, United States Code, Section 702
et seq. in response to the BIA's Written Notice of Intent to
Impound Plaintiffs' cattle (the "Impound Notice"). Plaintiffs'
cattle were allegedly grazing on land belonging to the Los
Coyotes Band of Indians (the "Band"). Plaintiffs seek to set
aside the BIA's determination to impound their cattle, and to
enjoin the BIA from taking further action with respect to the
Plaintiffs reside on the Los Coyotes Indian Reservation (the
"Reservation") and on privately-owned property within the
Reservation boundaries. Plaintiffs claim that they and their
predecessors in interest have grazed their cattle on the
Reservation for fifty years or more. They allege that the Band
recently directed the BIA to impound their cattle, and that the
BIA issued the Impound Notice without any hearing, evidence or
review of any action, ordinance or enactment of the Band
Plaintiffs claim that the BIA's action violates their Fifth
Amendment right against taking of private property without just
compensation and violates their equal protection and due process
rights by disregarding a prior BIA determination that Plaintiffs'
ancestor was adopted by the Band*fn2 Plaintiffs further
claim that the BIA action was arbitrary, capricious and an abuse
of discretion in violation of Plaintiffs' constitutional rights
because, as members of the Band, Plaintiffs are allowed to graze
their cattle on the Reservation, and because it is impossible for
them to contain the cattle on their property. As to
impossibility, they claim that BIA Route 43 runs through their
property, allowing the cattle to escape, and that they are
prohibited by law from installing a cattle guard or any other
structure without prior BIA approval.
Plaintiffs acknowledge that there is a dispute between them and
the Band regarding their status as members of the Band
Plaintiffs claim that they (except for Janet Taylor and Kenneth
Smith) are lineal descendants of Banning Taylor. The validity of
Banning Taylor's adoption into the Band was determined in 1979.
Plaintiffs allege that they were enrolled members of the Band
until 2001, when the Band adopted the Membership Act. Plaintiffs
claim that the adoption of the Membership Act was in violation of
the Indian Civil Rights Act, Title 25, United States Code,
Section 1302 ("ICRA") because the Band excluded them from
attending tribal meetings, refused to count their votes, and now
seeks to take their property without just compensation.
The BIA's motion is based on the proposition that the Band is
an indispensable party pursuant to Rule 19, without which this
action cannot proceed. As the Band enjoys sovereign immunity, the
BIA contends, it cannot be joined, and this action must be
dismissed. Plaintiffs provide only a cursory response to the
BIA's extensive Rule 19 arguments. The thrust of Plaintiffs'
opposition is that they are not asserting any claims against the
Band and that their only claim in this Court is the BIA's failure
to hold hearings or consider evidence before deciding to impound
Plaintiffs' cattle. Plaintiffs contend that the Band need not be
joined in this action to determine the due process issue.
The Court finds that Plaintiffs' complaint in large part
directly implicates the Band's decision regarding their
membership. The Court therefore finds that the Band is an
indispensable party to the claims which hinge on Plaintiffs'
membership, and dismisses those claims with prejudice. In
addition, the Court finds that Plaintiffs do not have a private
right of action pursuant to the ICRA, and their ICRA claim is
also dismissed with prejudice. Last, the complaint and the
attached exhibits suggest that the BIA provided Plaintiffs with
an opportunity to be heard prior to issuing the Impound Notice.
Accordingly, Plaintiffs' Fifth Amendment due process claim is
dismissed with leave to amend.
I. Failure to Join an Indispensable Party
Large portions of Plaintiffs' complaint, including their claims
of "Inapplicability" and "Violation of Civil Rights," are based
on the contention that they are or should be Band members. The
BIA contends that the Band is therefore an indispensable party to
this action pursuant to Rule 19, and that the action should be
dismissed pursuant to Rule 12(b)(7). Rule 19 mandates a two-step
We first ask whether . . . an absent party is
"necessary to the suit." If so, and if that party
cannot be joined, we then must assess whether . . .
the party [is] "indispensable" so that in" equity and
good conscience" the suit should be dismissed. The
inquiry is a practical one and fact specific, and is
designed to avoid the harsh results of rigid
application. The moving party has the burden of
persuasion in arguing for dismissal.
Clinton v. Babbitt, 180 F.3d 1081
, 1088 (9th Cir. 1999)
(internal quotation marks and citations omitted).
As the first step, Rule 19(a) requires, if feasible, the
joinder of parties who meet either of the following two criteria:
(1) in the person's absence complete relief cannot be
accorded among those already parties, or (2) the
person claims an interest relating to the subject of
the action and is so situated that the disposition of
the action in the person's absence may (i) as a
practical matter impair or impede the person's
ability to protect that interest or (ii) leave any of
the persons already parties subject to a substantial
risk of incurring double, multiple, or otherwise
inconsistent obligations by reason of the claimed
The Court finds that the Band meets both criteria of
Rule 19(a). "Indian tribes are necessary parties to actions affecting
their legal interests." Confederated Tribes of the Chehalis
Indian Reservation v. Lujan, 928 F.2d 1496
, 1499 (9th Cir.
1991). The "interest" referenced in Rule 19(a)(2) is broadly
construed to cover any "significantly protectable" or "legally
protectable" interest in the subject of the litigation. See
Makah Indian Tribe v. Verity, 910 F.2d 555
, 558 (9th Cir.
1990); see also Am. Greyhound Racing v. Tuscon Greyhound Park,
Inc., 305 F.3d 1015
, 1023 (9th Cir. 2002) (the interest need
not be a property right). Indian tribes have an interest in
determining their membership, and federal courts have no power to
pass on the validity of Indian tribes' enactments regarding
membership. See Santa Clara Pueblo v. Martinez, 436 U.S. 49
72 n. 32 (1978) ("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").*fn3
disposition of issues based on a claim of membership would, as a
practical matter, impair the Band's ability to protect its
interest in determining its membership. Because Plaintiffs'
complaint is in large part based on their disputed assertion that
they are or should be members of the Band, the Band meets the
criterion of Rule 19(a)(2).
In addition, complete relief cannot be granted in this case as
to the claims based on Plaintiffs' assertion of membership. Even
if the Court enjoined the BIA from impounding Plaintiffs' cattle,
the Band could still assert its right to deny membership and
grazing rights to Plaintiffs. See Confederated Tribes, 928
F.2d at 1498 ("judgment against the federal officials would not
be binding on the [tribe], which could continue to assert
sovereign powers and management responsibilities over the
reservation"). The Band therefore also meets the criterion of
Rule 19(a)(1). In the absence of the Band as a party, the Court
cannot decide any issues which are based on Plaintiffs' claim
that they are or should be members of the Band
Having determined that the Band meets the criteria of
Rule 19(a), the Court must next consider whether joinder is feasible.
"Indian tribes have long been recognized as possessing the
common-law immunity from suit traditionally enjoyed by sovereign
powers." Santa Clara Pueblo, 436 U.S. at 58. "Suits against
Indian tribes are thus barred by sovereign immunity absent a
clear waiver by the tribe or congressional abrogation." Pit
River Home and Agric. Coop. Ass'n v. United States,
30 F.3d 1088, 1100 (9th Cir. 1994) (citations and quotation marks
omitted). Plaintiffs do not dispute that the Band is a
federally-recognized Indian tribe. Thus, unless the Band has
"waived its sovereign immunity and expressly consented to suit,"
it cannot be joined as a party to this action. See id. at
1100-01. There is no indication in this case that the Band has
given its express consent to be sued. The Court therefore finds
that the Band is immune from suit and cannot be joined.
The inability to join an absent party that meets the Rule 19(a)
criteria does not automatically require dismissal of the case.
"The rule is that if the merits of the case may be determined
without prejudice to [the absent party's rights], it will be
done; and a court of equity will strain hard to reach that
result." 7 Charles Alan Wright, et al., Federal Practice and
Procedure § 1609, at 130 & n. 9 (2nd ed. 1986). Accordingly,
if a party who meets the criteria of Rule 19(a) cannot be joined,
the Court must consider in step two "whether in equity and good
conscience the action should proceed among the parties before it,
or should be dismissed, the absent person being thus regarded as
The factors to be considered by the court include:
first, to what extent a judgment rendered in the
person's absence might be prejudicial to the person
or those already parties; second, the extent to
which, by protective provisions in the judgment, by
the shaping of relief, or other measures, the
prejudice can be lessened or avoided; third, whether
a judgment rendered in the person's absence will be
adequate; fourth, whether the plaintiff will have an
adequate remedy if the action is dismissed for
The first factor of prejudice, "insofar as it focuses on the
absent party, largely duplicates the consideration that made a
party necessary under Rule 19(a): a protectable interest that
will be impaired or impeded by the party's absence." Am.
Greyhound Racing, 305 F.3d at 1024-25. The Band has a
protectable interest in determining its own membership, and would
be prejudiced if the Court adjudicated this issue as a part of
Plaintiffs' action against the BIA. Although the Band could
potentially intervene in this case, "the ability to intervene if
it requires waiver of immunity is not a factor that lessens
prejudice." Confederated Tribes, 928 F.2d at 1500; quoting
Makah Indian Tribe, 910 F.2d at 560.
With regard to the second factor, the Court finds that
Plaintiffs' claims against the BIA rest in large part on their
contention that they are or should be Band members and therefore
have a right to graze their cattle on the Reservation. If the
Court adjudicated this dispute, it would inevitably interfere
with the Band's interest in determining its membership. As to the
claims based on Plaintiffs' membership, no relief or remedy could
be fashioned in the Band's absence which would lessen the
prejudice to the Band's interest in determining its own
membership. See Pit River, 30 F.3d at 1101-02.
Third, there is no relief or remedy that would lessen the
prejudice to the Band and still provide Plaintiffs adequate
relief with respect to any claims which depend on their
membership. See Clinton, 180 F.3d at 1090. In cases such as
this, where complete relief cannot be awarded in the nonparty's
absence, dismissal is proper even though the plaintiff only
requests an order directing a federal agency to do or refrain
from doing some official act. See Kescoli v. Babbitt,
101 F.3d 1304 (9th Cir. 1996) (relief sought against a federal
agency which approved a settlement agreement of a mining permit
among the mining company, the agency and two Indian tribes).
Fourth, if Plaintiffs' claims which implicate Band membership
are dismissed for failure to join an indispensable party, then
Plaintiffs will have no adequate remedy and no alternative forum
available for those claims. "Lack of alternative forum does not
automatically prevent dismissal." Confederated Tribes, 928 F.2d
at 1500 quoting Makah Indian Tribe, 910 F.2d at 560. Although
this factor ordinarily favors the plaintiffs, lack of adequate
remedy is a "consequence of sovereign immunity, and the tribes'
interest in maintaining their sovereign immunity outweighs the
plaintiffs' interest in litigating their claims." Am. Greyhound
Racing, 305 F.3d at 1025; Clinton, 180 F.3d at 1090.
Based on consideration of Rule 19(b) factors, the Court finds
that the Band is an indispensable party to the claims which hinge
on Plaintiffs' membership, and that these claims cannot proceed
in the absence of the Band See, e.g., Clinton
180 F.3d 1081 (tribe indispensable party to an action seeking to prevent
the Secretary of the Interior from approving certain land
leases); Kescoli, 101 F.3d at 1310-11 (tribes indispensable
parties in challenge to settlement agreement between the tribes,
coal company and federal agency); Pit River, 30 F.3d at 1101-03
(tribe governing body indispensable party to claim by Indian
families to beneficial ownership of land held in trust by the
United States). Accordingly, Plaintiffs' claims based on the
contention that they are or should be Band members are DISMISSED
WITH PREJUDICE for failure to join an indispensable party.
II. The ICRA Claim
Plaintiffs' claim that the Impound Notice is arbitrary,
capricious and abuse of discretion is based in part on the
argument that the BIA knew that the Band's alleged actions in
adopting the 2001 Membership Act and its subsequent efforts to
persuade the BIA to impound Plaintiffs' cattle were in violation
of the ICRA, Title 25, United States Code, Section 1302. In their
opposition, Plaintiffs concede that they are not seeking any
remedy in this Court for the Band's alleged ICRA violations.
Plaintiffs' claim against the BIA for "Violation of Civil Rights"
is based on the allegation that the BIA knew of the Band's ICRA
violations but nevertheless issued the Impound Notice.
To the extent any of Plaintiffs' claims against the BIA are
based on alleged ICRA violations, they are dismissed for the
reasons stated above with respect to nonjoinder of an
indispensable party and on the alternative ground that the ICRA
does not provide Plaintiffs with a private right of action for
injunctive or declaratory relief against the Band or the BIA.
Dismissal on the alternative ground is warranted under
Rule 12(b)(6), which provides for dismissal where the complaint lacks
a cognizable legal theory. Robertson v. Dean Witter Reynolds,
Inc., 749 F.2d 530, 534 (9th Cir. 1984); see Neitzke v.
Williams, 490 U.S. 319, 326 (1989) ("Rule 12(b)(6) authorizes a
court to dismiss a claim on the basis of a dispositive issue of
In Santa Clara Pueblo v. Martinez the Supreme Court held that
"Title I of the ICRA does not expressly authorize the bringing of
civil actions for declaratory relief or injunctive relief to
enforce its substantive provisions," and that the Act may not be
"interpreted to impliedly authorize such actions, against the
tribe or its officers, in the federal courts." 436 U.S. at 51-52.
The exclusive remedy for violations of section 1302 is a writ of
habeas corpus pursuant to section 1303. See id. at 58, 69-70
("In 25 U.S.C. § 1303, the only remedial provision expressly
supplied by Congress, the `privilege of the writ of habeas
corpus' is made `available to any person, in a court of the
United States, to test the legality of his detention by order of
an Indian tribe.'"); see also Snow v. Quinault Indian Nation,
709 F.2d 1319, 1323 (9th Cir. 1983).
Plaintiffs do not contend in their complaint or in their
opposition that the ICRA provides for remedies or rights of
action against the BIA. The text of ICRA does not so provide.
See 25 U.S.C. § 1301-1303. This is consistent with its central
purpose "to secure for the American Indian the broad
constitutional rights afforded to other Americans, and thereby to
protect the individual Indians from arbitrary and unjust actions
of tribal governments." Santa Clara Pueblo, 436 U.S. at 61
(internal citation and quotation marks omitted). Accordingly,
Plaintiffs' claim for "Violation of Civil Rights" is DISMISSED
WITH PREJUDICE on the alternative ground that the ICRA does not
provide them with a private right of action for relief they seek.
III. The Due Process Claim
In their opposition Plaintiffs contend that the membership
issue is not material to this action because their dispute is not
with the Band but with the BIA for its failure to afford them due
process. Plaintiffs' complaint in this regard is based on the
contention that the BIA made a determination that Plaintiffs'
cattle should be impounded without holding any hearings or taking
"Constitutional due process requires that a party affected by
government action be given `the opportunity to be heard at a
meaningful time in a meaningful manner.'" California ex rel.
Lockyer v. Fed. Energy Regulatory Comm'n, 329 F.3d 700, 708 n.
6 (9th Cir. 2003) quoting Matthews v. Eldridge,
424 U.S. 319, 333 (1976). As the due process claim could conceivably be
decided without encroaching on the Band's determination regarding
Plaintiffs' membership, the Court examines its sufficiency
pursuant to Rule 12(b)(6).
A Rule 12(b)(6) motion tests the sufficiency of the complaint.
Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal
of a claim under this Rule is appropriate only where "it appears
beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief." Conley
v. Gibson, 355 U.S. 41, 45-46 (1957); Navarro, 250 F.3d at
732. Dismissal is warranted under Rule 12(b)(6) where the
complaint lacks a cognizable legal theory. Robertson,749 F.2d
at 534; see Neitzke, 490 U.S. at 327. Alternatively, a
complaint may be dismissed where it presents a cognizable legal
theory yet fails to plead essential facts under that theory.
Robertson, 749 F.2d at 534. In reviewing a motion to dismiss
under Rule 12(b)(6), the court must assume the truth of all
factual allegations and must construe them in the light most
favorable to the nonmoving party. Cahill v. Liberty Mut. Ins.
Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Legal conclusions need
not be taken as true merely because they are cast in the form of
factual allegations. Roberts v. Corrothers, 812 F.2d 1173, 1177
(9th Cir. 1987); Western Mining Council v. Watt, 643 F.2d 618,
624 (9th Cir. 1981). When ruling on a motion to dismiss, the
court may consider documents attached to the complaint. See
Parrino v. FHP, Inc., 146 F.3d 699, 705-706 (9th Cir. 1998).
The Impound Notice, attached to the complaint and stamped with
a date of September 5, 2003, states that "[o]n October 3, 2002,
you were notified that your livestock were grazing in trespass,
and you were instructed to remove them." Plaintiffs do not
allege, although they do not dispute, that they received the
October 3, 2002 notice of trespass. Pursuant to the BIA
regulations, a written notice to the alleged trespasser includes,
among other things, a description of the corrective actions that
must be taken and time frames for taking the corrective actions.
25 C.F.R. § 166.803(a). Within the time specified in the trespass
notice, the alleged trespasser may contact the BIA "in writing to
explain why the trespass notice is in error."
25 C.F.R. § 166.804(b). If the BIA determines that the trespass notice was
issued in error, the notice is withdrawn. Id. Plaintiffs do not
allege that the regulations pertaining to the trespass and
impound notices on their face fail to provide them with due
process. It therefore appears that the BIA affords alleged
trespassers with due process.
Based in the text of the Impound Notice, is unclear whether
Plaintiffs were timely notified of the procedure to dispute the
trespass notice, or, if they were timely notified, whether they
simply did not avail themselves of this procedure. Accordingly,
Plaintiffs' due process claim is DISMISSED WITH LEAVE TO AMEND
to clarify this issue.
For the foregoing reasons, the complaint is DISMISSED WITH
PREJUDICE to the extent it is based on Plaintiffs' claim that
they are or should be Band members, which includes their claims
of "Inapplicability" and "Violation of Civil Rights." The claim
of "Violation of Civil Rights is DISMISSED WITH PREJUDICE on
the alternative ground that the ICRA does not provide Plaintiffs
with the right of action or remedies they seek. The Fifth
Amendment due process violation is DISMISSED WITH LEAVE TO
AMEND to clarify whether Plaintiffs were timely notified of the
procedure to dispute the trespass notice and whether they availed
themselves of this procedure. If Plaintiffs choose to amend their
complaint, they must do so no later than 30 days after the filing
date of this order.
IT IS SO ORDERED.