United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 12, 2007 Decided February 15, 2008
No. 06-5203
CALIFORNIA VALLEY MIWOK TRIBE F/K/A SHEEP RANCH OF
ME-WUK INDIANS OF CALIFORNIA,
APPELLANT
v.
UNITED STATES OF AMERICA, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 05cv00739)
Phillip Eugene Thompson argued the cause for appellant.
With him on the briefs were Johnine Clark and Sonya
Anjanette Smith-Valentine.
Mark R. Haag, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
James Merritt Upton and Katherine J. Barton, Attorneys.
Tim Vollmann argued the cause and filed the brief for
amicus curiae Yakima K. Dixie in support of appellees.
2
Before: GRIFFITH, Circuit Judge, and EDWARDS and
WILLIAMS, Senior Circuit Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
GRIFFITH, Circuit Judge: Since the days of John
Marshall, it has been a bedrock principle of federal Indian law
that every tribe is “capable of managing its own affairs and
governing itself.” Cherokee Nation v. Georgia, 30 U.S.
(5 Pet.) 1, 16 (1831); see also Worcester v. Georgia, 31 U.S.
(6 Pet.) 515, 559 (1832) (stating that tribes are “distinct,
independent political communities, retaining their original
natural rights”). But tribes that want federal benefits must
adhere to federal requirements. The gateway to some of those
benefits is the Indian Reorganization Act of 1934 (“the Act”),
which requires tribes to organize their governments by
adopting a constitution approved by the Secretary of the
Interior (“Secretary”). See 25 U.S.C. § 476.
This case involves an attempt by a small cluster of people
within the California Valley Miwok tribe (“CVM”) to
organize a tribal government under the Act. CVM’s
chairwoman, Silvia Burley, and a group of her supporters
adopted a constitution to govern the tribe without so much as
consulting its membership. The Secretary declined to approve
the constitution because it was not ratified by anything close
to a majority of the tribe. Burley and her supporters—in
CVM’s name—then sued the United States, claiming that the
Secretary’s refusal was unlawful and seeking a declaration
that CVM is organized pursuant to 25 U.S.C. § 476.1 Because
1
Throughout, we refer to Burley rather than “CVM” or “the tribe”
because we are mindful that there is an ongoing leadership dispute
between Burley and former tribal chairman Yakima Dixie. Both
claim to represent the tribe, and Dixie filed an amicus brief in this
3
we conclude that the Secretary lawfully refused to approve
the proposed constitution, we affirm the district court’s
dismissal of Burley’s claim. Burley also argues that the
district court erred in denying her motions for leave to file
supplemental claims for relief. We conclude that any such
error was harmless.
I.
Indian tribes are “unique aggregations possessing
attributes of sovereignty over both their members and their
territory; they are a separate people possessing the power of
regulating their internal and social relations.” United States v.
Mazurie, 419 U.S. 544, 557 (1975) (internal quotation marks
and citations omitted). To qualify for federal benefits,
however, tribes must meet conditions set by federal law. The
most important condition is federal recognition, which is “a
formal political act confirming the tribe’s existence as a
distinct political society, and institutionalizing the
government-to-government relationship between the tribe and
the federal government.” COHEN’S HANDBOOK OF FEDERAL
INDIAN LAW § 3.02[3], at 138 (2005 ed.). The federal
government has historically recognized tribes through treaties,
statutes, and executive orders, but it does so today primarily
by a standardized application process administered by the
Secretary. See generally 25 C.F.R. pt. 83; see also id. § 83.7
(listing the factors the Secretary must consider when deciding
whether to recognize a tribe). Among the federal benefits that
a recognized tribe and its members may claim are the right to
receive financial assistance under the Snyder Act, see 25
U.S.C. § 13 (authorizing the Secretary to “direct, supervise,
and expend” funds for a range of purposes including health
case in support of the United States. We pass no judgment on that
dispute.
4
and education), and the right to operate gaming facilities
under the Indian Gaming Regulatory Act, see 25 U.S.C.
§§ 2701 et seq.2
Once recognized, a tribe may qualify for additional
federal benefits by organizing its government under the Act.
“[Section 476 of the Act] authorizes any tribe . . . to adopt a
constitution and bylaws, subject to the approval of the
Secretary of the Interior.” Kerr-McGee Corp. v. Navajo Tribe
of Indians, 471 U.S. 195, 198 (1985). Organization under
§ 476 vests in a tribe the power “[t]o employ legal counsel; to
prevent the sale, disposition, lease, or encumbrance of tribal
lands, interests in lands, or other tribal assets without the
consent of the tribe; and to negotiate with the Federal, State,
and local governments.” 25 U.S.C. § 476(e). And some
governmental benefits may flow only to tribes organized
under the Act. For example, in this case the California
Gaming Control Commission—which distributes an annual
payment to all non-gaming tribes in the state—suspended
CVM’s allotment of approximately $1 million when it learned
that CVM was unorganized.3
Section 476 of the Act provides two ways a tribe may
receive the Secretary’s approval for its constitution. The first
is, in effect, a safe harbor. Section 476(a) says:
Any Indian tribe shall have the right to
organize for its common welfare, and may
2
According to the government, Burley wishes to build and operate
a casino for CVM. Government’s Brief at 10–11.
3
The stakes for CVM may be raised even higher if California’s
gaming tribes expand their casinos, as news reports suggest they are
planning to do. See The New Indian Wars, ECONOMIST, Nov. 29,
2007.
5
adopt an appropriate constitution and bylaws,
and any amendments thereto, which shall
become effective when—
(1) ratified by a majority vote of the
adult members of the tribe or tribes
at a special election authorized and
called by the Secretary under such
rules and regulations as the
Secretary may prescribe; and
(2) approved by the Secretary pursuant
to subsection (d) of this section.
25 U.S.C. § 476(a). Pursuant to subsection (a)(1), the
Secretary has promulgated several rules governing special
elections. See generally 25 C.F.R. pt. 81. Compliance with
these rules is a prerequisite for the Secretary’s approval of a
proposed constitution. Among other things, the rules define
voter eligibility, id. § 81.6, create tribal-election boards, id.
§ 81.8, establish voting districts, id. § 81.9, describe voter-
registration procedures, id. § 81.11, stipulate conditions for
election notices, id. § 81.14, set poll opening and closing
times, id. § 81.15, and describe the criteria for ballots, id.
§ 81.20. According to subsection (d)(1), once shown that the
proposed constitution is the product of the § 476(a) process,
the Secretary “shall approve the constitution [] within forty-
five days after the election unless the Secretary finds that the
proposed constitution [is] contrary to applicable laws.”
25 U.S.C. § 476(d)(1).4
4
“[A]pplicable laws” means “any treaty, Executive order or Act of
Congress or any final decision of the Federal courts which are
applicable to the tribe, and any other laws which are applicable to
the tribe pursuant to an Act of Congress or by any final decision of
6
Section 476(h) provides a second way to seek the
Secretary’s approval for a proposed constitution. Unlike the
extensive procedural requirements of § 476(a), under § 476(h)
a tribe may adopt a constitution using procedures of its own
making:
Notwithstanding any other provision of this
Act each Indian tribe shall retain inherent
sovereign power to adopt governing
documents under procedures other than those
specified in this section[.]
25 U.S.C. § 476(h)(1). But this greater flexibility in process
comes with a cost. Section 476(h) does not provide a safe
harbor. As discussed in detail in Part III, the central issue in
this case is the extent of the Secretary’s power to approve a
constitution under this section.
II.
CVM is a federally recognized Indian tribe. See Indian
Entities Recognized and Eligible to Receive Services from the
United States Bureau of Indian Affairs, 70 Fed. Reg. 71,194,
71,194 (Nov. 25, 2005). It has a potential membership of
250,5 but its current tribal council—led by Burley—was
the Federal courts.” Act of Nov. 1, 1988, Pub. L. No. 100-581,
§ 102(1), 102 Stat. 2938, 2939.
5
This figure was offered by the tribe itself in separate litigation.
See Complaint for Injunctive and Declaratory Relief at 1, California
Valley Miwok Tribe v. United States, No. 02-0912 (E.D. Cal. Apr.
29, 2002). We take judicial notice of that document. See Veg-Mix,
Inc. v. U.S. Dep’t of Agric., 832 F.2d 601, 607 (D.C. Cir. 1987).
7
handpicked by only a tiny minority.6 This case is the latest
round of sparring between Burley and the federal government
over whether the tribe is organized under the Act. Burley’s
efforts to organize the tribe began in 2000 when, pursuing the
safe harbor procedure of § 476(a), she and a group of her
supporters adopted a constitution and requested the Secretary
to call an election for its ratification. Section 476(c) required
the Secretary to call an election on the proposed constitution
within 180 days. For reasons not apparent from the record, the
Secretary never called the election. Rather than press the
matter, Burley withdrew her request for a vote on the
constitution.
A second effort to organize came in 2001, when Burley’s
group adopted a new constitution for the tribe. This time,
Burley bypassed the § 476(a) process and instead sent the
constitution directly to the Secretary for approval. The
Secretary informed her that the constitution was defective and
the tribe still unorganized.
Perhaps relying on the old adage, Burley made a third
attempt in early 2004. Meanwhile, Congress passed the
Native American Technical Corrections Act, which added
§ 476(h). The Secretary then responded to Burley by rejecting
her proposed constitution and explaining that she would need
to at least attempt to involve the entire tribe in the
6
In 1999, the Secretary recognized Burley as CVM’s chairperson.
The Secretary also entered into a “self-determination contract” with
the tribe under the Indian Self-Determination Act. See 25 U.S.C.
§ 450f. Pursuant to that contract, the tribe received funds for the
development of its government. Subsequently, however, the
Secretary modified her stance and recognized CVM’s leadership
only on an interim basis, pending the tribe’s organization effort.
Burley does not challenge this change.
8
organizational process before the Secretary would give
approval:
Where a tribe that has not previously
organized seeks to do so, [the Secretary] also
has a responsibility to determine that the
organizational efforts reflect the involvement
of the whole tribal community. We have not
seen evidence that such general involvement
was attempted or has occurred with the
purported organization of your tribe. . . . To
our knowledge, the only persons of Indian
descent involved in the tribe’s organization
efforts, were you and your two daughters.
Letter from Dale Risling, Sr., Superintendent, United States
Department of the Interior, Bureau of Indian Affairs-Cent.
Cal. Agency, to Silvia Burley (Mar. 26, 2004).
Burley, in CVM’s name, then sued the United States for
its failure to recognize the tribe as organized. She also twice
motioned for leave to file supplemental claims for relief. The
district court dismissed the original complaint for failure to
state a claim and also denied the motions for leave.
We review the grant of a motion to dismiss de novo.
Broudy v. Mather, 460 F.3d 106, 116 (D.C. Cir. 2006).
Although Burley initially filed two claims for relief—one
under § 476(h) of the Act and the other under the
Administrative Procedure Act (“APA”), 5 U.S.C. § 704—we
review only the APA claim because § 476(h) offers no private
cause of action. We review the denial of leave to file
supplemental claims for abuse of discretion. Hall v. CIA, 437
F.3d 94, 101 (D.C. Cir. 2006).
9
III.
The Burley faction has chosen not to repeat its effort to
organize under § 476(a). Instead, it has tried to organize under
§ 476(h). Burley argues that, under § 476(h), the Secretary
had no choice but to approve the proposed constitution. The
Secretary reads § 476(h) to allow her to reject any constitution
that does not “reflect the involvement of the whole tribal
community.” We consider the question within the framework
of Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984). The Secretary’s legal
interpretation did not come in either a notice-and-comment
rulemaking or a formal adjudication, the usual suspects for
Chevron deference. We nonetheless believe that Chevron—
rather than Skidmore v. Swift & Co., 323 U.S. 134 (1944)—
provides “the appropriate legal lens through which to view the
legality of the Agency interpretation,” Barnhart v. Walton,
535 U.S. 212, 222 (2002), because of the “interstitial nature of
the legal question” and the “related expertise of the Agency,”
id. We must therefore determine whether Congress has
spoken directly to the issue. If it has not, we must defer to the
agency’s interpretation as long as it is reasonable. Chevron,
467 U.S. at 842–43. We hold that the Secretary’s
interpretation is a permissible one.7
7
We recognize that we typically do not apply full Chevron
deference to an agency interpretation of an ambiguous statutory
provision involving Indian affairs. In the usual circumstance, “[t]he
governing canon of construction requires that ‘statutes are to be
construed liberally in favor of the Indians, with ambiguous
provisions interpreted to their benefit.’ ” Cobell v. Norton, 240 F.3d
1081, 1101 (D.C. Cir. 2001) (quoting Montana v. Blackfeet Tribe of
Indians, 471 U.S. 759, 766 (1985)). “This departure from the
Chevron norm arises from the fact that the rule of liberally
construing statutes to the benefit of the Indians arises not from the
ordinary exegesis, but ‘from principles of equitable obligations and
10
Burley asserts that § 476(h) unambiguously requires the
Secretary to approve any constitution adopted under that
provision. In Burley’s view, the Secretary has no role in
determining whether a tribe has properly organized itself to
qualify for the federal benefits provided in the Act and
elsewhere. That cannot be. Although the sovereign nature of
Indian tribes cautions the Secretary not to exercise
freestanding authority to interfere with a tribe’s internal
governance, the Secretary has the power to manage “all
Indian affairs and [] all matters arising out of Indian
relations.” 25 U.S.C. § 2 (emphases added).8 We have
previously held that this extensive grant of authority gives the
Secretary broad power to carry out the federal government’s
unique responsibilities with respect to Indians. See Udall v.
Littell, 366 F.2d 668, 672 (D.C. Cir. 1966) (“In charging the
Secretary with broad responsibility for the welfare of Indian
tribes, Congress must be assumed to have given [her]
reasonable powers to discharge it effectively.”); see also
United States v. Eberhardt, 789 F.2d 1354, 1359 (9th Cir.
normative rules of behavior,’ applicable to the trust relationship
between the United States and the Native American people.” Id.
(quoting Albuquerque Indian Rights v. Lujan, 930 F.2d 49, 59
(D.C. Cir. 1991)). Here, however, the Secretary’s proposed
interpretation does not run against any Indian tribe; it runs only
against one of the contestants in a heated tribal leadership dispute,
see supra note 1. In fact, as we later explain, the Secretary’s
interpretation actually advances “the trust relationship between the
United States and the Native American people.” Therefore,
adherence to Chevron is consistent with the customary Indian-law
canon of construction.
8
This grant of authority was initially lodged in the Secretary of
War. See Act of July 9, 1832, ch. 174, § 1, 4 Stat. 564. It was
eventually transferred to the Secretary of the Interior in 1849. See
Act of Mar. 3, 1849, ch. 108, § 5, 15 Stat. 228.
11
1986) (noting that § 2 serves “as the source of Interior’s
plenary administrative authority in discharging the federal
government’s trust obligations to Indians”). The exercise of
this authority is especially vital when, as is the case here, the
government is determining whether a tribe is organized, and
the receipt of significant federal benefits turns on the decision.
The Secretary suggests that her authority under § 476(h)
includes the power to reject a proposed constitution that does
not enjoy sufficient support from a tribe’s membership. Her
suggestion is reasonable, particularly in light of the federal
government’s unique trust obligation to Indian tribes. See
Seminole Nation v. United States, 316 U.S. 286, 296 (1942)
(noting “the distinctive obligation of trust incumbent upon the
Government in its dealings with” tribes). A cornerstone of this
obligation is to promote a tribe’s political integrity, which
includes ensuring that the will of tribal members is not
thwarted by rogue leaders when it comes to decisions
affecting federal benefits. See id. at 297 (“Payment of funds at
the request of a tribal council which, to the knowledge of the
Government officers charged with the administration of
Indian affairs . . . , was composed of representatives faithless
to their own people and without integrity would be a clear
breach of the Government’s fiduciary obligation.”); Seminole
Nation v. Norton, 223 F. Supp. 2d 122, 140 (D.D.C. 2002)
(noting that the Secretary “has the responsibility to ensure that
[a tribe’s] representatives, with whom [she] must conduct
government-to-government relations, are valid representatives
of the [tribe] as a whole”) (emphasis added).
The sensibility of the Secretary’s understanding of
§ 476(h) is especially apparent in a case like this one.
Although CVM, by its own admission, has a potential
membership of 250, only Burley and her small group of
supporters had a hand in adopting her proposed constitution.
12
This antimajoritarian gambit deserves no stamp of approval
from the Secretary. As Congress has made clear, tribal
organization under the Act must reflect majoritarian values.
See 25 U.S.C. § 476(a) (requiring majority vote by tribe for
adoption of a constitution); id. § 476(b) (requiring majority
vote by tribe for revocation of a constitution); id. §§ 478,
478a (requiring majority vote by tribe in order to exclude
itself from the Act). And as we have previously noted, tribal
governments should “fully and fairly involve the tribal
members in the proceedings leading to constitutional reform.”
Morris v. Andrus, 640 F.2d 404, 414 (D.C. Cir. 1981).
Because the Secretary’s decision not to approve Burley’s
proposed constitution was permissible, we affirm the
dismissal of Burley’s claim.
Burley also argues that the district court abused its
discretion by denying her motions for leave to file
supplemental claims. See FED. R. CIV. P. 15(d). Any such
error was harmless. See FED. R. CIV. P. 61. Because there has
been no fact development in this case, no harm is done by
requiring Burley to file her supplemental claims in a new
cause of action. See 6A CHARLES ALAN WRIGHT ET AL.,
FEDERAL PRACTICE & PROCEDURE § 1506, at 197 (2d ed.
1990) (noting that “when joinder will not promote judicial
economy or the speedy disposition of the dispute between the
parties, refusal to allow the supplemental pleading is entirely
justified”).
For the foregoing reasons, the judgment of the district
court is
Affirmed.