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July 21, 2004.


The opinion of the court was delivered by: LARRY BURNS, Magistrate Judge


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.


  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 Impound Notice.

  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 analysis:
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 interest.
  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 A 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 ...

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