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California Valley Miwok Tribe v. Kempthorne

February 23, 2009

CALIFORNIA VALLEY MIWOK TRIBE, PLAINTIFF,
v.
DICK KEMPTHORNE, SECRETARY OF THE UNITED STATES DEPARTMENT OF THE INTERIOR; GEORGE SKIBINE, ACTING DEPUTY ASSISTANT SECRETARY FOR POLICY AND ECONOMIC DEVELOPMENT-INDIAN AFFAIRS; DALE RISLING, REGIONAL DIRECTOR OF THE BUREAU OF INDIAN AFFAIRS; TROY BURDICK, SUPERINTENDENT OF THE CENTRAL CALIFORNIA AGENCY OF THE BUREAU OF INDIAN AFFAIRS, DEFENDANTS.



The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge

MEMORANDUM AND ORDER

This matter is before the court on California Valley Miwok Tribe's ("plaintiff" or "the Tribe") motion for preliminary injunction against defendants*fn1 ("defendants," "BIA" or "the government").*fn2 Plaintiff contends that defendants' failure to renew its annual funding agreement ("AFA") is based upon a misreading of the applicable law, and that the denial of the AFA has caused plaintiff to "shut down tribal operations" and "threatens to preclude the Tribe from entering the Self-Governance Program," which permits the Tribe to provide certain programs and services to its members on behalf of the federal government. (Pl.'s Mem. in Supp. of TRO and Prelim. Inj. ("Pl.'s Mem."), filed Jan. 15, 2009, at 2.) Plaintiff requests the court sequester or disburse to it the funds allocated to the Tribe for the 2008 program year, pending resolution of this action. (Id. at 13.)

Upon the government's denial of the Tribe's 2008 AFA, the Tribe appealed the decision to the Department of the Interior, Board of Indian Appeals ("the Board"), thus initiating the administrative appeals process. See Cal. Valley Miwok Tribe v. Cent. Cal. Agency Superintendent, Bureau of Indian Affairs, 47 IBEA 91, Docket No. IBIA 08-58-A (June 10, 2008) (denying the Tribe's appeal as "untimely"). Rather than exhausting its administrative remedies by appealing the Board's decision to the district court, pursuant to the Administrative Procedures Act ("APA"), 5 U.S.C. § 706, plaintiff filed the instant action, asserting direct claims against defendants based on their denial of the AFA. Under the doctrine of exhaustion of remedies, this court lacks jurisdiction over this matter, and plaintiff's complaint must be dismissed for that reason.

However, even if this court had jurisdiction over this case, plaintiff would not prevail on its motion. A recent district court decision found that the Tribe lacks a recognizable governing body (see Cal. Valley Miwok Tribe v. United States, 424 F. Supp. 2d 197, 202-03 (D.D.C. 2006) ("CVMT I")); the government relied on CVMT I in rejecting the AFA. Because having a recognizable governing body is a prerequisite for the government to contract with an Indian tribe, plaintiff cannot demonstrate a likelihood of success on the merits of its claims sufficient to obtain a preliminary injunction.

For the reasons set forth in more detail below, this action is dismissed for plaintiff's failure to exhaust administrative remedies, or, alternatively, plaintiff's motion for preliminary injunction is denied on the merits as plaintiff cannot demonstrate a reasonable likelihood of success on its claims.*fn3

BACKGROUND

For the past decade, the California Miwok Tribe, a federally recognized Indian tribe (Cal. Valley Miwok Tribe v. United States, 515 F.3d 1262, 1265 (D.C. Cir. 2006) ("CVMT II") (citing 70 Fed. Reg. 71,194, 71,194 (Nov. 25, 2005))), has been mired in internal leadership disputes, bringing into question the legitimacy of the Tribe's organizational structure. The BIA has, on several occasions, refused to recognize the Tribe's governing body. In 2006, a district court ruled in favor of the government, finding that the government was not required to recognize the Tribe as an "organized tribe" when the purported leadership only represented a small percentage of the potential tribal membership. CVMT I, 424 F. Supp. 2d at 202-03. The following represents a chronology of relevant facts and tribal dealings leading to the 2006 litigation and the current litigation.

1. The 2006 Litigation: The Tribe's Attempt to Obtain Approval of their Constitution

In November 1998, upon recommendation of the BIA, the Tribe established a tribal council. CVMT I, 424 F. Supp. 2d at 198. The Tribe subsequently elected Silvia Burley ("Burley") as chairperson of that council in 1999. Id. In 2000, in an attempt to become organized under federal law, Burley requested that the BIA review and approve the Tribe's newly-adopted constitution.

Id. at 199; CVMT II, 515 F.3d at 1265. The BIA failed to do so in a timely manner and Burley subsequently withdrew her request. CVMT I, 424 F. Supp. 2d at 199; CVMT II, 515 F.3d at 1265. A second effort to organize was similarly unsuccessful. In 2001, the Secretary of the BIA informed Burley that the Tribe's constitution was "defective and the [T]ribe still unorganized." CVMT II, 515 F.3d at 1265. Forming the basis for the BIA's position was the current leadership's failure to "attempt to involve the entire tribe in the organizational process." Id.

Burley, in the Tribe's name, then sued the government for its failure to recognize the tribe as organized, seeking declaratory and injunctive relief. Id. at 1266. The Tribe alleged that the BIA had violated 25 U.S.C. section 476(h) by not recognizing the Tribe's "government, its documents, and its chairperson." CVMT I, 424 F. Supp. 2d at 210. The District Court for the District of Columbia found in favor of the government, holding that the BIA was not required to recognize the Tribe's governing body and its governing documents when the leadership did not actually represent the tribal membership. CVMT I, 424 F. Supp. 2d at 201-03. The court dismissed the Tribe's action for failure to state a claim. Id. at 203. The D.C. Circuit affirmed, noting that the government must work to "promote a tribe's political integrity," which means ensuring that the tribe's leaders represent the tribe as a whole. CVMT II, 515 F.3d at 1267 (citing Seminole Nation v. United States, 316 U.S. 286, 296-97 (1942) and Seminole Nation v. Norton, 223 F. Supp. 2d 122, 140 (D.C. Cir. 2002)). As the court articulated, the Tribe "ha[d] a potential membership of 250, [yet] only Burley and her small group of supporters had a hand in adopting her proposed constitution. This antimajoritarian gambit deserves no stamp of approval from the Secretary." Id. at 1267.

2. The Current Litigation: The BIA's Failure to Renew the AFA

On September 30, 1999, the Tribe, through Burley, became a "contracting tribe" under the Indian Self-Determination and Education Assistance Act ("ISDEAA").*fn4 (Pl.'s Mem. at 6.) Pursuant to a contract between the Tribe and the BIA, the Tribe was responsible for government organizational tasks, including "drafting a constitution, adopting laws to govern the Tribe, adopting and implementing tribal member enrollment criteria and interacting with the State of California and other states to protect the interests of eligible Miwok Indian children under the Indian Child Welfare Act, 25 U.S.C. section 1901 et seq." (Id. at 6-7.)

Every year from September 30, 1999 to December 31, 2007, the BIA renewed the Tribe's AFA, which provided funds to the Tribe to "operate programs, functions and activities on behalf of the Tribe." (Id. at 7.) Colleen Petty, the Tribe's Financial Administrator/Consultant, submitted the 2008 AFA proposal and resolution to Troy Burdick ("Burdick"), Superintendent of the Central California Agency of ...


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