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Aguayo v. Jewell

United States District Court, S.D. California

November 18, 2014

TIFFANY L. (HAYES) AGUAYO, (691), et al., Plaintiffs,
SALLY JEWELL, Secretary of the Department of Interior — United States of America, et al., Defendants.


CYNTHIA BASHANT, District Judge.

On June 19, 2013, Plaintiffs commenced this declaratory-relief action seeking judicial review of a decision issued by the Assistant Secretary - Indian Affairs ("Assistant Secretary" or "AS-IS") under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A), against Defendants Sally Jewell, Secretary of the Department of Interior; Kevin Washburn, Assistant Secretary of the Department of Interior - Indian Affairs; Amy Dutschke, Regional Director Department of Interior Indian Affairs, Pacific Regional Office; and Robert Eben, Superintendent of Interior Indian Affairs, Southern California Agency. Each defendant is sued in their official capacities. This action arises from the disenrollment of the named plaintiffs from the Pala Band of Mission Indians ("Pala Band" or "Band").[1] Now pending before the Court are the parties' cross-motions for summary judgment.

Having reviewed the papers submitted and oral argument from both parties, the Court DENIES Plaintiffs' motion for summary judgment, and GRANTS Defendants' cross-motion for summary judgment.


"For nearly two centuries now, [federal law has] recognized Indian tribes as distinct, independent political communities, ' qualified to exercise many of the powers and prerogatives of self-government." Plains Commerce Bank v. Long Family & Cattle Co., 554 U.S. 316, 327 (2008) (citations omitted) (quoting Worcester v. Georgia, 6 Pet. 515, 559 (1832)) (citing United States v. Wheeler, 435 U.S. 313, 322-23 (1978)). The "sovereignty that the Indian tribes retain is of a unique and limited character." Wheeler, 435 U.S. at 323. "[T]ribes are subject to plenary control by Congress, " but they also remain "separate sovereigns pre-existing the Constitution." Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978); see United States v. Lara, 541 U.S. 193, 200 (2004). "Thus, unless and until Congress acts, the tribes retain' their historic sovereign authority." Michigan v. Bay Mills Indian Cmty., - U.S. -, 134 S.Ct. 2024, 2030 (2014) (citing Wheeler, 435 U.S. at 323).

"As part of their residual sovereignty, tribes retain power to legislate and to tax activities on the reservation, including certain activities by nonmembers, to determine tribal membership, and to regulate domestic relations among members." Plains Commerce Bank, 554 U.S. at 327 (citations omitted). "An Indian tribe has the power to define membership as it chooses, subject to the plenary power of Congress." Williams v. Gover, 490 F.3d 785, 789 (9th Cir. 2007). "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." Santa Clara Pueblo, 436 U.S. at 72 n.32.

A. The Pala Band's Governing Documents and Enrollment Ordinances

In the Indian Reorganization Act, Congress recognized each Indian tribe's "inherent sovereign power to adopt governing documents under procedures other than those specified in [the Act]." 25 U.S.C. § 476(h)(1). In accordance with the Indian Reorganization Act, the Pala Band adopted its first governing document-the Articles of Association-in 1960. (AR 4, 2096.) It was adopted by a vote of 21 in favor and none opposed in a "duly called general tribal meeting." (AR 2103.) In March 1960, the Commissioner of Indian Affairs subsequently approved the Articles of Association. (AR 4, 2116.)

With the desire to prepare an official membership roll in accordance with Section 2 of the Articles of Association, the Pala Band adopted its first enrollment ordinance-Ordinance No. 1-to establish "regulations governing procedures for enrollment and for keeping the roll on a current basis, " which came into effect in November 1961. (AR 2116, 2119.) The Pala Band's Executive Committee ("EC") was delegated the responsibility of reviewing and approving or disapproving each application for enrollment.[3] (AR 2117.) Once the EC approved or disapproved an application, it was then required to file the application with the Area Director (now known as the Regional Director) of the Bureau of Indian Affairs ("BIA"). ( Id. ) Following the receipt of the application from the EC, the Area Director was required to "review the enrollment applications and the reports and recommendations of the Executive Committee and... determine the applicants who are eligible for enrollment[.]" ( Id. ) Next, the Area Director was required to notify the EC of any action taken on the applications, and "if approved, the notice will constitute authority for the [Executive] Committee to enter the applicant's name on the membership roll." ( Id. ) The ordinance also contains a provision for rejected applicants to appeal to the Commissioner of Indian Affairs and then to the Secretary of the Interior. (AR 2118.) The Secretary's decision on an appeal is deemed "final and conclusive" under the original enrollment ordinance. ( Id. )

On November 22, 1994, the Pala Band "voted to accept the new Constitution" at the tribal elections, which was approved by a vote of 131 in favor and 65 opposed, beginning the process of adopting a Constitution "to supersede the Articles of Association." (AR 4, 2121; see AR 2137.) Subsequently, a certification of the election results was sent to the BIA. (AR 2121.) In a document titled "Resolution 97-36: Tribal Constitution, " the Pala Band General Council certified that they, "exercising [their] inherent rights as a sovereign, federally-recognized Tribe... adopt[ed] the Pala Tribal Constitution to supersede the Articles of Association" at a duly-called meeting held on November 19, 1997 with a quorum present by a vote of 27 in favor and none opposed. (AR 2137.) The resolution and the Constitution of the Pala Band (Revised) ("1997 Constitution") was sent to the Acting Regional Director, who approved the Constitution in July 2000. (AR 2139-41.) In accordance with Article IX Section 9 of the 1997 Constitution, the Constitution became "effective immediately after its approval by a majority vote of the voters voting in a duly-called election[] at which this Constitution is approved by the Bureau of Indian Affairs." (AR 2322.)

The 1997 Constitution delegated the authority to "from time to time amend and/or replace its existing Enrollment Ordinance with an Ordinance governing adoption, loss of membership, disenrollment, and future membership" to the Pala Band EC. (AR 2314.) Pursuant to that authority, the EC adopted a revised version of Ordinance No. 1 on July 22, 2009. (AR 2324-33.) The revised Ordinance No. 1 includes the prefatory statement that:

the Executive Committee of the Pala Band, by adoption of this revised Ordinance, does not intend to alter or change the membership status of individuals whose membership has already been approved and who are currently listed on the membership roll of the Pala Band of Mission Indians, nor does it intend to change the membership status of those persons whose membership applications have previously been disapproved[.]

(AR 2325.) Despite the Pala Band's stated intention, Section 6 of the revised Ordinance No. 1 nonetheless confers the authority to reevaluate membership applications "[s]hould the Executive Committee subsequently find that an applicant or the person filing the application on his/her behalf misrepresented or omitted facts that might have made him/her ineligible for enrollment[.]" (AR 2329-30.) Upon reevaluation, the ordinance allows the EC to remove the member's name from the Pala Band's roll subject to an appeal of the decision. (AR 2330.) A rejected applicant may appeal to the BIA's Pacific Regional Director, who is responsible for reviewing the EC's decision and "mak[ing] a recommendation to the Executive Committee as to whether it should uphold or change its decision[.]" (AR 2330-31.) There are at least five instances in the appeals provision stating that the Regional Director's determination is a "recommendation." ( Id. ) Under the revised enrollment ordinance, the EC's decision is deemed "final." (AR 2331.)

B. Plaintiffs' Tribal Membership and Disenrollment

Plaintiffs are descendants of Margarita Britten, born in 1856 and identified on the Pala Band's November 1913 allotment roll as 4/4 degree Pala Indian blood. (AR 2160.) There had been "several inconsistent determinations" as to the blood degree of Ms. Britten's descendants, and up until July 1984, the BIA considered Ms. Britten as a "halfblood" in determining the blood degree of her descendants. (AR 2165.)

On May 17, 1989, the Assistant Secretary issued a written decision regarding the appeal of one of Ms. Britten's descendants who had been declared as possessing 1/32 degree Pala blood. (AR 2164.) In order to resolve the descendant's appeal, the Assistant Secretary found it necessary to "first resolve the blood degree issue of Margarita Britten." ( Id. ) In sustaining the descendant's appeal, the Assistant Secretary concluded that Ms. Britten was a "fullblood" and "direct[ed] that the blood degree of her descendants be reviewed and corrected accordingly." (AR 2165.) It is important to note that that decision was reached under the Articles of Association and original enrollment ordinance.

On February 3, 2012, the EC sent letters to Plaintiffs notifying them that they are no longer members of the Pala Band and that their rights to tribal benefits were terminated. (AR 1385, 2089; see also AR 1285-86.) The decision was based upon a review of enrollment information, and a vote at a "duly called Special Meeting of the Executive Committee of the Pala Band... with a quorum present." ( Id.; see also AR 1285-86.) Plaintiffs appealed the EC's decision to the Regional Director. (AR 2076-87.)

On June 7, 2012, the Regional Director sent letters to Plaintiffs regarding their appeal. (AR 1284-86.) In those letters, it was noted that disenrollment decisions are based on Section 8 of the Pala Band's revised enrollment ordinance, and "[b]ecause the Band's Enrollment Ordinance does not invoke any provision of federal law that would provide the Bureau of Indian Affairs with the authority to decide enrollment appeals, there is no required federal action to take with regard to these requests, and [the Regional Director] cannot render any decision regarding the Executive Committee's actions." (AR 1284.) Instead, Section 8 of the Enrollment Ordinance only "permit[ted] the Regional Director to provide informal recommendations on the Executive Committee's actions." ( Id. ) The Regional Director recommended that Plaintiffs "remain enrolled with the Band as there was no evidence provided to support the disenrollment of these individuals, " and that the Pala Band "continue to recognize the membership status of the individuals affected by the February 3, 2012[] Executive Committee action." ( Id. )

Plaintiffs then appealed within the Department of the Interior, first to the Interior Board of Indian Appeals ("IBIA"), and then to the Assistant Secretary. (AR 1188-1273.) The Assistant Secretary invited the parties to file motions to supplement the record, indicated that he would consider additional specified documents in addition to the administrative record, and allowed the parties to brief issues raised in the consolidated appeals. (AR 26-28.)

C. The Assistant Secretary's June 2013 Decision

On June 12, 2013, the Assistant Secretary issued his decision affirming the Regional Director's letters. (AR 1-23.) Addressing the nature and extent of the Department's authority, the Assistant Secretary reasoned that the "statute of limitations... precludes a challenge to the approval to the Constitution's effectiveness and applicability[, ]" and based on "prior practice, " rejected arguments that an "election" was required to amend the Articles of Association or adopt a new Constitution. (AR 12-16.) In reaching those conclusions, the Assistant Secretary noted that "as a general matter, it is not appropriate for the Department to intervene in internal tribal disputes or procedural matters[, ]" and that "[i]t is also well established that the Department does not exercise jurisdiction over tribal disputes regarding the merits of a particular law passed by a tribe." (AR 13, 15.) Furthermore, the Assistant Secretary concluded that the Pala Band "has not provided the Assistant Secretary a decision-making role under the 2009 enrollment ordinance." (AR 16-18.) The decision also addressed the other "remaining arguments" presented. (AR 18-19.)

Ultimately, the Assistant Secretary decided "that the Regional Director acted based on a proper interpretation of authority under tribal law to review the enrollment appeals[, ]" highlighting that "[t]ribal law limited the Regional Director to making a recommendation, ' rather than actually deciding the enrollment appeals." (AR 23.) It was further decided that "the Department has no authority under Federal or tribal law to decide enrollment issues for the Band." ( Id. )

D. Procedural History of This Action

On June 19, 2013, Plaintiffs filed this complaint seeking review of the Assistant Secretary's June 2013 decision under the APA and the arbitrary-and-capricious standard. (Compl. ¶ 38.) They assert four separate claims for declaratory relief to set aside the AS-IA's decision: (1) that the 6-year APA statute of limitations applies; (2) to recognize the 1997 Constitution as "effectively" adopted as the Pala Band's governing document; (3) that the 2009 revised enrollment ordinance applies and that the BIA can only issue a "recommendation"; and (4) to not name individual minors Joseph Ravago and Kaley Ravago ("Ravago Minors") as joined parties in the AS-IA appeal. On August 15, 2013, Defendants answered.

Now pending before the Court are the parties' cross-motions for summary judgment. (ECF Nos. 54, 57.) The unredacted administrative record was filed under seal. (ECF No. 64.) Following briefing, the parties appeared for oral argument on November 17, 2014.


Summary judgment is proper if the pleadings, discovery, and affidavits show that there is "no genuine dispute as to any material fact and [that] the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is a particularly appropriate tool for resolving claims challenging agency action. See Occidental Eng'g Co. v. INS, 753 F.2d 766, 770 (9th Cir. 1985). As the administrative record constitutes the entire factual record in this case and there are no facts at issue between the parties, this matter is ripe for summary judgment.

A final agency action is reviewable under 5 U.S.C. § 706 when "there is no other adequate remedy in a court." 5 U.S.C. § 704. Under the APA, a reviewing court shall "hold unlawful and set aside agency action[s], findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Review under this standard is "searching and careful, " but also "narrow." Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378 (1989). "Although [the court's] inquiry must be thorough, the standard of review is highly deferential; the agency's decision is entitled to a presumption of regularity, ' and [the court] may not substitute [its] own judgment for that of the agency." San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-16 (1971)).

An agency decision is arbitrary and capricious:

if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Motor Vehicle Mfgs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); see also Hovhannisyan v. U.S. Dep't of Homeland Sec., 624 F.Supp.2d 1135, 1149 (C.D. Cal. 2008) ("[A]n agency abuses its discretion when it fails to comply with [its own] regulations."). The agency must "cogently explain why it has exercised its discretion in a given manner, " and the reviewing court must determine "whether the decision was based on a ...

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