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Alto v. Black

United States Court of Appeals, Ninth Circuit

December 26, 2013

Albert P. ALTO; Andre E. Alto; Anthony Alto; Brandon Alto; Christy Alto; Christopher J. Alto; Daniel J. Alto, Jr.; Daniel J. Alto, Sr.; Dominique N. Alto; Raymond E. Alto, Sr.; Raymond E. Alto; Raymond J. Alto, a Representative for Ben Alto, deceased, Marcus M. Alto, deceased, Marcus R. Alto, deceased, David Gomez, deceased, Susan Martinez, deceased; Robert Alto; Ronald Alto, Sr.; Victoria (Alto) Ballew; Angela (Martinez-Mcneal) Ballon; Juan J. Ballon; Rebecca (Alto) Ballon; Ruby Ballon; Janice J. Banderas; Peter Banderas; Victor Banderas; David A. Brokiewicz; Diana Brokiewicz; Patricia D. Brokiewicz; Monica (Sepeda) Diaz; Anthony Forrester; Dustin Forrester; Johanna (Alto) Forrester; Sarah Forrester; Ernest Gomez; Henrietta (Alto) Gomez; Kathleen M. Gomez; Humberto R. Green; Lydia (Alto) Green; Paul Anthony Green; Mary Jo (Alto) Hurtado; Justin A. Islas; Cynthia (Sepeda) Ledesma; Destiny C. Ledesma; Amanda M. Minges; Isabelle M. Sepeda; Lupe Sepeda; Deborah L. Vargas; Desiree Vargas; Jeremiah Vargas; Jessiah Vargas; Terry Weight; Jason Alto; Carol Edith Cavazos; Aimee Renae Diaz; Daniel Gomez; Lisa Gomez Huntoon; Christine Martinez; Marlene M. Martinez; Cassandra Sepeda; Pamela J. Alto, as Guardian ad litem for Marcus M. Green, a minor; Pedro Banderas, as Guardian ad litem for Reina A. Banderas, a minor; Dawn Castillo, as Guardian ad litem for Alexis N. Ledesma, a minor, and Jesse Ledesma, a minor; Maria A. Perez-Rolon, as Guardian ad litem for Roland J. Alto, Jr., a minor; Martin Diaz, as Guardian ad litem for Jessica Diaz, a minor, Toni L. Diaz, a minor, and Jacob Diaz, a minor; Donald Martinez, as Guardian ad litem for Donelle Martinez, a minor, Justine Martinez, a minor, and Sabrina Martinez, a minor, Plaintiffs-Appellees,
Michael BLACK, Director of the Bureau of Indian Affairs of Department of Interior; Robert Eben, Superintendent of the Bureau of Indian Affairs, Southern California Agency, of Department of Interior; Kevin K. Washburn, Assistant Secretary of Indian Affairs of Department of Interior; Sally Jewell, Secretary of Department of Interior, Defendants-Appellees, and Doe, Defendants, 1 through 10, inclusive, Defendant, San Pasqual Band of Mission Indians, Intervenor-Appellant.

Argued and Submitted Feb. 11, 2013.

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Geoffrey D. Strommer (argued), Vernon L. Peterson, and Timothy C. Seward, Hobbs, Straus, Dean & Walker, LLP, Portland, OR, for Intervenor-Appellant.

Thor O. Emblem (argued) and Tracy L. Emblem, Law Offices of Thor O. Emblem, Escondido, CA, for Plaintiffs-Appellees.

John L. Smeltzer (argued), Ignacia S. Moreno, Assistant Attorney General, and Katherine J. Barton, Environment and Natural Resources Division, United States Department of Justice, Washington, D.C., for Federal Appellees.

Appeal from the United States District Court for the Southern District of California, Irma E. Gonzalez, Chief District Judge, Presiding.

Before: MARSHA S. BERZON and PAUL J. WATFORD, Circuit Judges, and JAMES G. CARR, Senior District Judge.[*]


BERZON, Circuit Judge:

Our question concerns the propriety of a preliminary injunction issued with regard to a dispute over membership in an Indian tribe. " ‘ [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.’ " Cahto Tribe of Laytonville Rancheria v. Dutschke, 715 F.3d 1225, 1226 (9th Cir.2013) (quoting Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 n. 32, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978)). In view of the importance of tribal membership decisions and as part of the federal policy favoring tribal self-government, matters of tribal enrollment are generally beyond federal judicial scrutiny. See Lewis v. Norton, 424 F.3d 959, 961 (9th Cir.2005). Here, however, the tribe's own governing documents vest the United States Department of Interior, Bureau of Indian Affairs (" BIA" ), with ultimate authority over membership decisions. The issues in this case center on whether, and to what degree, this circumstance varies the usual judicial " hands off" policy for tribal membership decisions.

Specifically, we must decide whether the district court had jurisdiction to enjoin preliminarily the enforcement of a BIA order upholding the Band's decision to disenroll descendants of Marcus Alto, Sr. (" the Altos" ), from the San Pasqual Band of Mission Indians (" the Band" or " the Tribe" ), and whether such injunctive relief may issue in the Band's absence. We hold that the exercise of jurisdiction was proper, and that the Band is not a required party for the adjudication of the claims underlying the preliminary injunction, as they concern solely the propriety of final agency action. Accordingly, we affirm the district court's denial of the Band's motions to dismiss the claims on which the injunction rests and its consequent refusal to dissolve the preliminary injunction. And we remand to allow the district court formally to clarify its order in compliance with our understanding of it, as described below. We lack jurisdiction to review on interlocutory appeal the Band's motion to dismiss the Altos' other claims, on which the district court expressly deferred ruling.

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A. The Enrollment Dispute

The San Pasqual Band of Mission Indians is a federally recognized Indian tribe whose ancestors occupied the San Pasqual Valley, east of San Diego, California. Article III, section 2 of the Band's Constitution gives the Secretary of the Interior final authority over tribal enrollment decisions. See Const. & Bylaws of the San Pasqual Band of Mission Indians, art. III, § 2 (" Const. of the Band" ). The Constitution also expressly incorporates federal regulations, adopted in 1960 and formerly codified at 25 C.F.R. §§ 48.1-48.15 (" the 1960 Regulations" ), which addressed tribal enrollment criteria, the process for completing an initial membership roll, the procedures for keeping the membership roll current, and the purposes for which the roll was to be used.

The 1960 Regulations have since been removed from the Code of Federal Regulations,[1] but the reference to them remains in the Tribe's Constitution. The parties agree that the substance of the otherwise defunct 1960 Regulations survive as tribal law and govern enrollment decisions for the Band.

In 1987, Marcus Alto, Sr. and his descendants applied to be added to the San Pasqual Band membership roll, on the basis of Marcus Alto Sr.'s claimed linear descent from Jose Alto and Maria Duro, both listed as members of the Band on the 1910 Census Roll.[2] Under 25 C.F.R. § 48.5(b) (1960), " [d]escendants of Indians whose names appear as members of the Band on the Census Roll" are eligible for enrollment, provided they possess one-eighth or more degree of Indian blood of the Band and are not affiliated with any other tribe. The Altos' applications were adjudicated by the BIA's Superintendent of the Southern California Agency after Alto, Sr.'s death in 1988, resulting, in 1991, in a finding that the Altos were eligible for membership. The Band appealed the enrollment decision to the BIA's Assistant Secretary-Indian Affairs, who affirmed.

So stood the Altos' legal status until, in 2007, an individual member of the Band formally challenged Marcus Alto, Sr.'s enrollment before the Band's Enrollment Committee. The contention was that Alto, Sr. was the adoptive son of Jose Alto and Maria Duro, not their biological child, and therefore did not have the requisite degree of Indian blood to be enrolled as a member of the Band.[3] The Committee voted to

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disenroll Alto, Sr.'s descendants, and, after notifying the Altos, requested that the BIA Regional Director approve its disenrollment decision on the basis of the new evidence. See 25 C.F.R. § 48.5(b) (1960).

When the Regional Director denied the request, the Band appealed his decision to the Assistant Secretary— Indian Affairs. The Assistant Secretary reversed the decision of the Regional Director, issuing the 22-page 2011 Disenrollment Order challenged in this suit. Making his own findings of fact, the Assistant Secretary concluded that, applying the Band's membership criteria set forth in the 1960 Regulations, the Altos' names must be deleted from the Band's membership rolls because enrollment was based on inaccurate information regarding Marcus Alto, Sr.'s blood lineage.

The Altos thrice sought reconsideration of the Assistant Secretary's decision. After receiving no response, they filed the instant suit.

B. The Federal Litigation

The Altos sued the Assistant Secretary and other federal officials, all in their official capacities,[4] and moved concurrently for a temporary restraining order and preliminary injunction. The complaint did not name the Band as a defendant.

The Altos' initial pleadings describe four claims for declaratory and injunctive relief.[5] The first three claims seek the court's invalidation of the 2011 Disenrollment Order due to various alleged errors in the agency's decisionmaking. Specifically, the first claim asserts that the 1995 decision of the Assistant Secretary, upholding Marcus Alto, Sr.'s membership in the Band, precluded the Assistant Secretary's 2011 Disenrollment Order under the doctrine of res judicata; the second contends that the Assistant Secretary's decision violated the Altos' rights to procedural due process; and the third seeks reversal of the Disenrollment Order on the ground that it was arbitrary and capricious agency action.

The Administrative Procedure Act (" APA" ) provides a right to judicial review of all " final agency action for which there is no other adequate remedy in a court." 5 U.S.C. § 704. Although only the third claim is explicitly denominated as an APA claim in the complaint, the first three claims all involve challenges to the propriety of the BIA's decision. All three may therefore be fairly characterized as claims for judicial review of agency action under the APA, 5 U.S.C. §§ 701-706. See Skinner v. Switzer, __ U.S. __, 131 S.Ct. 1289, 1296, 179 L.Ed.2d 233 (2011) (" [U]nder the Federal Rules of Civil Procedure, a complaint need not pin plaintiff's claim for relief to a precise legal theory." ); McCalden v. Cal. Library Ass'n, 955 F.2d 1214, 1223 (9th Cir.1990) (holding that a plaintiff " is not required to state the statutory or constitutional basis for his claim, only the facts underlying it" ).

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Alleging that the BIA has failed to fulfill its fiduciary duty to protect their interests, the fourth " cause of action" requests a preliminary injunction to " preserv[e] the [Altos'] status quo" rights and benefits. As elaborated in their motion for a preliminary injunction, the Altos sought a court order prohibiting the removal of enrolled Alto descendants from the Tribe's membership rolls and compelling the BIA, pending resolution of this suit, to order the Band to provide the Altos with continued rights and benefits of tribal membership (including access to health care, participation in tribal governance decisions, and disbursements of tribal gaming revenues).

Soon after the filing of the initial complaint, the Band moved to appear specially as a necessary party and sought dismissal of the suit under Federal Rule of Civil Procedure 12(b)(7) for inability to join a required party under Rule 19.[6] Joinder was barred, the Band maintained, because of tribal sovereign immunity.

The district court declined to dismiss the action, reasoning that complete relief could be afforded absent the Tribe. The court then granted the Altos' request for a preliminary injunction, holding that the Altos had raised substantial questions going to the merits of their res judicata and arbitrary and capricious decisionmaking claims; that they were likely to suffer irreparable harm due to the loss of access to rights and benefits associated with tribal membership; and that the balance of equities tipped sharply in their favor. The preliminary injunction forbid the BIA from removing the Altos from the Band's membership roll or taking any further action to implement the January 2011 Disenrollment Order pending completion of the litigation. The injunction also required the Assistant Secretary to issue interim orders directing the Band to: allow the Altos access to voting rights, meetings of the Band's council, and Indian Health Service (" IHS" ); make per capita distributions to the Altos of gaming revenue for the duration of the lawsuit; and escrow the juvenile Altos' per capita trust funds, " to the same extent as was required during the pendency of the administrative proceedings and before the issuance of the January 28, 2011 [disenrollment] order."

The following month, the Assistant Secretary issued a Memorandum Order and Report of Compliance with the Preliminary Injunction. The Memorandum Order began by explaining that, in the Assistant Secretary's view, he lacks authority to " compel the Band to comply with all aspects of the orders, exactly as phrased by the court." Accordingly, the Order " advise[d] " the Band that denying the Altos voting rights " shall be recognized as a denial of [their] due process rights, and will not be recognized by the Department." It " notif [ied] " IHS and the Band that the Altos are eligible for health services and that the Assistant Secretary " expect[s] " IHS and the Band to comply with regulations regarding the provision of those services. And finally, the order " advised " the Tribe that denying distribution of per capita payments to members " would constitute a violation of the Band's Revenue Allocation Plan (RAP)" and " that while this order is in effect, the Band may place all per capita distributions to the Alto descendants (including minors) into an escrow account created for this purpose. If the Alto descendants ultimately prevail in this litigation, the Band must distribute the funds in the escrow account to the Alto descendants, including distribution to the

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minors' trust fund as set forth in the Band's approved RAP."

The Alto descendants, objecting to the Memorandum Order as noncompliant with the preliminary injunction, moved the district court to compel the BIA's compliance with the portion of the preliminary injunction that required the agency to direct the Band to pay per capita gaming revenues to the Altos for the duration of the lawsuit. The district court denied the objections and motion to compel compliance, but did not formally amend the injunction to reflect the BIA's concerns about the scope of the Secretary's authority. [7]

Once the preliminary injunction was in place, the Band sought and was granted the right to intervene, without waiving its sovereign immunity, for the limited purpose of filing jurisdictional motions. The Band then moved to dissolve the injunction for lack of jurisdiction. Its bases for that request were, first, the assertion that the court's preliminary injunction order depended on jurisdictionally impermissible interpretations of tribal law; and, second, that the preliminary injunction order subjects the Band to " substantial inequities," by providing relief running against the Band's self-governance and property interests. In addition, the Band renewed its earlier motion to dismiss the suit under Rule 12(b)(7), for inability to join a Rule 19-required party, and under Rule 12(b)(1), for lack of subject matter jurisdiction.

The BIA objected to the Band's motion in part, arguing that the Band is not a required party for the Altos' first three causes of action. The agency agreed with the Band, however, that the court lacked subject matter ...

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