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 ...