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Cloverdale Rancheria of Pomo Indians of California, et al v. Kenneth L. Salazar

May 11, 2012

CLOVERDALE RANCHERIA OF POMO INDIANS OF CALIFORNIA, ET AL., PLAINTIFFS,
v.
KENNETH L. SALAZAR, SECRETARY OF THE DEPARTMENT OF THE INTERIOR, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Jeremy Fogel United States District Judge

E-Filed 5/12/2012

United States District Court For the Northern District of California

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION; GRANTING MOTION TO DISMISS FOR LACK OF STANDING; TERMINATING MOTION TO INTERVENE AS MOOT; AND DISMISSING ACTION WITH PREJUDICE [re: dkt. entries 78, 82]

This action arises out of an internal political dispute within the Cloverdale Rancheria of Pomo Indians of California ("the Cloverdale Rancheria" or "the Tribe"). Plaintiffs claim that they 22 are members of the Tribe's rightful governing body, that Defendants improperly have refused to 23 deal with them, and that instead Defendants have dealt with a competing governing body that lacks 24 authority to act on behalf of the Tribe. Plaintiffs allege claims under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., and the Indian Self-Determination and Education Assistance Act ("ISDA"), 25 U.S.C. § 450 et seq. Defendants move to dismiss the operative second amended 27 complaint ("SAC") for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) and 28 for lack of standing pursuant to Fed. R. Civ. P. 12(b)(6). In a separate motion, the "Cloverdale Rancheria of Pomo Indians of California" ("Proposed Intervenor"), as represented by the governing 2 body that has been recognized by Defendants, seeks leave to intervene in the action. The Court 3 concludes that these motions are appropriate for disposition without oral argument pursuant to Civ. L.R. 7-1(b). For the reasons discussed below, the motion to dismiss for lack of subject matter 5 jurisdiction will be granted in part and denied in part, the motion to dismiss for lack of standing will 6 be granted, the motion to intervene will be terminated as moot, and the action will be dismissed with prejudice.

In 1958, the Rancheria Act terminated a number of Indian rancherias, including the Cloverdale Rancheria. See Alan--Wilson v. Sacramento Area Director ( "Alan--Wilson I"), 30 IBIA 241, 244-45 (1997). Tribal property was distributed to individual tribe members ("distributees").

I. BACKGROUND

7, 2006). "Upon distribution of tribal property, the tribes ceased to exist and members of the former 14 tribes were stripped of their status as Indians." Id. In 1979, individuals from a number of 15 terminated tribes filed the Hardwick action, seeking "restoration of their status as Indians and 16 entitlement to federal Indian benefits, as well as the right to re-establish their tribes as formal 17 government entities." Id. In 1983, Hardwick was settled with respect to members of seventeen 18 former tribes, including the Cloverdale Rancheria. See id.; Alan-Wilson I, 30 IBIA at 245. Those 19 seventeen tribes were restored to federal recognition; as a result, "the Cloverdale Rancheria was 20 listed in the Federal Register as a tribal entity eligible to receive government services." See Alan-21

June 1996 Council

In the years following restoration of the Cloverdale Rancheria, several competing groups 24 purported to hold tribal elections and to form tribal governments. See id. at 246-52. On April 1, 25 See Hardwick v. United States, No. C 79-1710 JF (PVT), 2006 WL 3533029, at *1 (N.D. Cal. Dec. 13 Wilson I, 30 IBIA at 246. 22

1997, the Interior Board of Indian Appeals ("IBIA")*fn1 vacated decisions of the Bureau of Indian

Affairs ("BIA") that had recognized two separate tribal governments at different points in time. See 2 id. at 262. The IBIA remanded the matter and directed the BIA to facilitate resolution of the dispute 3 between the Tribe's members. See id. at 262. On remand, the BIA concluded that under the 4

Hardwick settlement only distributees (and their successors) of the Cloverdale Rancheria's assets 5 were eligible to participate in organization of a tribal government. See Alan--Wilson v. Acting 6

Sacramento Area Director ("Alan--Wilson II"), 33 IBIA 55, 55 (1998). The BIA sent notices to 127 7 individuals that it determined were eligible to vote, inviting them to a meeting regarding 8 organization of the Tribe. See id. Those that attended the meeting voted to support a council that 9 had been elected on June 1, 1996 as the Tribe's interim governing body ("June 1996 Council").*fn2

13 actions without approval of the members of the Hardwick class, including expanding membership of 14 the Cloverdale Rancheria to include individuals who were not members of the Hardwick class, 15 removing two members of the June 1996 Council, and replacing them with two individuals who 16 were not members of the Hardwick class. SAC ¶¶ 45-50. Plaintiffs allege that although Defendants 17 are aware that the June 1996 Council is not acting with the approval of the members of the 18

Hardwick class, Defendants nonetheless continue to engage in a government-to-government 19 relationship with the June 1996 Council.*fn3 SAC ¶ 57. For example, Defendants have entered into a 20 self-determination contract with the Cloverdale Rancheria, as represented by the June 1996 Council, 21 pursuant to the ISDA. SAC ¶ 56. 22

Individuals who were members of the Hardwick class created the Committee to Organize the

Cloverdale Rancheria Government ("Committee to Organize"). SAC ¶¶ 60-61. The Committee to 25

See id. The IBIA subsequently affirmed recognition of the June 1996 Council as the rightful governing body of the Cloverdale Rancheria. See id. at 55-56.

Plaintiffs claim that the June 1996 Council subsequently "went rogue," and took a number of Committee to Organize

I. 27

Organize compiled a list of individuals who it believed were eligible to participate in tribal 2 elections, and then it conducted its own election on December 16, 2008. SAC ¶¶ 64-66. As part of 3 that election process, the "Cloverdale Constitution" was passed. SAC ¶ 67. On January 13, 2009, 4 the Committee to Organize conducted an election for a tribal council ("January 2009 Council"). 5

SAC ¶ 68. The following individuals were elected: Javier Martinez as Chairperson, Sarah Goodwin 6 as Vice-Chairperson, Lenette Laiwa-Brown as Secretary, Gerad Santana as Treasurer, and John 7

Central California Agency Superintendent, Troy Burdick ("BIA Superintendent Burdick"), 9 requesting recognition of their formal organization of the Cloverdale Rancheria government. SAC ¶ 10

Present Action

On April 14, 2010, the Committee to Organize and the individuals elected to the January 2009 Council (Martinez, Goodwin, Laiwa-Brown, Santana, and Trippo) (collectively, "Plaintiffs") 14 filed the present action on behalf of themselves and purportedly on behalf of the Tribe. Plaintiffs 15 alleged that the acting regional director for the Pacific Regional Office of the BIA, Dale Risling 16

Burdick's decision denying their request for recognition. Plaintiffs asserted claims under the APA, 18 seeking to compel action on their appeal. 19

After Plaintiffs filed their original complaint, BIA Acting Regional Director Risling denied 21 their appeal. Plaintiffs then filed a first amended complaint ("FAC") alleging three claims for relief. 22

First, Plaintiffs alleged that Defendants had failed to fulfill their obligation under Hardwick to 23 provide necessary and appropriate assistance to Plaintiffs' efforts to organize the government of the 24

Plaintiffs' organization of the Rancheria. Third, Plaintiffs alleged that Defendants violated 26

Plaintiffs' equal protection rights by failing to treat them in the same manner as other tribes in the 27

Hardwick class. After hearing argument on Defendants' motion to dismiss the FAC, the Court 28 directed Defendants to ask the IBIA to consider Plaintiffs' appeal of BIA Acting Regional Director

69. BIA Superintendent Burdick denied the request for recognition. SAC ¶ 71.

Trippo as General Representative. Id. The Committee to Organize then sent a letter to the BIA's 8

("BIA Acting Regional Director Risling"), had failed to act on their appeal of BIA Superintendent 17

First Amended Complaint

Cloverdale Rancheria. Second, Plaintiffs claimed that Defendants were obligated to recognize 25

IBIA time to reach a decision on Plaintiffs' appeal. However, the IBIA denied the request for 3 expedited consideration. The Court subsequently dismissed all three of Plaintiffs' claims for lack of 4 subject matter jurisdiction. The Court terminated as moot the motions to intervene and for sanctions 5 that had been brought by Proposed Intervenor. 6

On July 9, 2010, the same date on which Plaintiffs filed the FAC, the January 2009 Council

8 sent a letter request to BIA Acting Regional Director Risling, requesting that the Department of the 9

Risling's decision on an expedited basis. The Court stayed the matter for ninety days to allow the 2

Plaintiffs' Self-Determination Proposals

Interior ("the Department") amend the Cloverdale Rancheria's existing ISDA self-determination 10 contract.*fn4 SAC ¶ 90, Exh. 11. The stated purpose of the request was "to accurately reflect the

current duly-authorized governing body and duly elected officials of the Cloverdale Rancheria . . . ;

to apply for discretionary funds that may be available; to add and/or create new programs with such 13 funds as may be available; and/or reprogram existing funds." SAC Exh. 11. On September 24, 2010, 14

BIA Acting Regional Director Risling responded by letter stating that the BIA was precluded from 15 acting on the request in light of the appeal that was pending before the IBIA at that time, and in light 16 of the present lawsuit. SAC Exh. 12. 17

18 for the Pacific Regional Office of the BIA, Amy Dutschke ("BIA Regional Director Dutschke"), 19 seeking to renew the Cloverdale Rancheria's self-determination contract subject to the previously-20 requested amendments. SAC Exh. 13. On March 1, 2011, BIA Superintendent Burdick responded 21 by letter stating in relevant part as follows: 22

On November 22, 2010, the January 2009 Council sent a letter request to the regional director

In accordance with 25 C.F.R. Part 900.6, Subpart B, Definitions, we are returning your application to contract FY 2011 funding ...


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