Albert Alto v. Kenneth Salazar

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ALBERT P. ALTO; ANDRE E. ALTO; No. 12-56145
ANTHONY ALTO; BRANDON ALTO;
CHRISTY ALTO; CHRISTOPHER J. D.C. No.
ALTO; DANIEL J. ALTO, JR.; DANIEL 3:11-cv-02276-
J. ALTO, SR.; DOMINIQUE N. ALTO; IEG-BLM
RAYMOND E. ALTO, SR.; RAYMOND
E. ALTO; RAYMOND J. ALTO, a
Representative for Ben Alto, OPINION
deceased, Marcus M. Alto, deceased,
Marcus R. Alto, deceased, David
Gomez, deceased, Susan Martinez,
deceased; ROBERT ALTO; RONALD J.
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
2 ALTO V. BLACK

(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,

v.
 ALTO V. BLACK 3

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.

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

Argued and Submitted
February 11, 2013—Pasadena, California

Filed December 26, 2013
4 ALTO V. BLACK

Before: Marsha S. Berzon and Paul J. Watford, Circuit
Judges, and James G. Carr, Senior District Judge.*

Opinion by Judge Berzon

SUMMARY**

Tribal Affairs

In an appeal from the district court’s orders denying a
motion to dissolve a preliminary injunction and denying
motions to dismiss in an action concerning a dispute over
membership in an Indian tribe, the panel affirmed in part,
dismissed in part, and remanded.

The San Pasqual Band of Mission Indians’ governing
documents vested the United States Department of Interior,
Bureau of Indian Affairs, with ultimate authority over
membership. The panel held that the district court had
jurisdiction to enjoin preliminarily the enforcement of the
Bureau of Indian Affairs’ order upholding the Band’s
decision to disenroll descendants of Marcus Alto, Sr. from the
Band, and that the Band was not a required party, because the
claims underlying the preliminary injunction concern solely
the propriety of final agency action. Accordingly, the panel
affirmed the district court’s denial of the Band’s motion to

*
The Honorable James G. Carr, Senior District Judge for the U.S.
District Court for the Northern District of Ohio, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 ALTO V. BLACK 5

dismiss the claims on which the injunction rests and the
district court’s consequent refusal to dissolve the preliminary
injunction. The panel remanded to allow the district court to
clarify its order. Finally, the panel held that it lacked
jurisdiction to review on interlocutory appeal the Band’s
motion to dismiss the Altos’ other claims, on which the
district court expressly deferred ruling.

COUNSEL

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

Thor O. Emblem (argued) and Tracy L. Emblem, Law
Offices of Thor O. Emblem, Escondido, California, 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.
6 ALTO V. BLACK

OPINION

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 (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.
 ALTO V. BLACK 7

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.

I. FACTS & PROCEDURAL HISTORY

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

1
See Enrollment of Indians of the San Pasqual Band of Mission Indians
in California, 52 Fed. Reg. 31391-01 (Aug. 20, 1987) (noting the
redesignation of the 1960 Regulations from 25 C.F.R. Part 48 to 25 C.F.R.
8 ALTO V. BLACK

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

Part 76); Enrollment of Indians; Removal of Regulations, 61 Fed. Reg.
27780-01 (June 3, 1996) (removing Part 76). All references to the federal
regulations incorporated into the Band’s Constitution are to the version
adopted in 1960.
2
Such membership disputes have been proliferating in recent years,
largely driven by the advent of Indian gaming, the revenues from which
are distributed among tribal members. See generally Suzianne D. Painter-
Thorne, If You Build It, They Will Come: Preserving Tribal Sovereignty
in the Face of Indian Casinos and the New Premium on Tribal
Membership, 14 Lewis & Clark L. Rev. 311, 313 & nn.8–10, 320 (2010);
see also Alvarado v. Table Mountain Rancheria, 509 F.3d 1008, 1014–15
(9th Cir. 2007); Lewis, 424 F.3d at 960.
 ALTO V. BLACK 9

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 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.

3
The U.S. District Court for the Southern District of California
dismissed two previous challenges to the BIA’s approval of the Altos’
enrollment, citing various bars to litigation, including inter alia, standing,
statute of limitations, and compulsory joinder. See Order Granting
Defendant’s Motion to Dismiss Complaint, Caylor v. BIA, No. 03-cv-1859
(S.D. Cal. Apr. 22, 2004); Order Granting Defendants’ Motion to Dismiss,
Atilano v. BIA, No. 05-cv-1134 (S.D. Cal. Dec. 1, 2005).
10 ALTO V. BLACK

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.

4
For purposes of this opinion, we refer to all of the federal defendants
collectively as “the BIA.”
5
The Alto descendants added a fifth claim for relief when they amended
their complaint in March 2012, after the issuance of the preliminary
injunction before us. This fifth claim seeks: (a) an order directing the BIA
and the Department of Interior to acknowledge that the Alto descendants
were never removed from the Band’s federally approved membership roll
and are therefore entitled to per capita payments under the Indian Gaming
Regulatory Act (“IGRA”), 25 U.S.C. §§ 2701–2721, and/or the Indian
Civil Rights Act (“ICRA”), 25 U.S.C. §§ 1301–1303; and (b) an order
directing the federal government to “exercise its fiduciary responsibility
and protect the Plaintiffs’ right to equal treatment in tribal membership
benefits.” The district court has not yet ruled on any aspect of this claim,
so we do not do so either.
 ALTO V. BLACK 11

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, 131 S. Ct.
1289, 1296 (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”).

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 ALTO V. BLACK

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

6
Following stylistic amendments enacted in 2007, Federal Rule of Civil
Procedure 19 no longer refers to “indispensable” parties, but instead uses
the term “required party.” We do so as well.
 ALTO V. BLACK 13

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 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

7
We discuss the scope of the injunction in more detail in Part II.B.
14 ALTO V. BLACK

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 jurisdiction over the
fourth and fifth causes of action.

Citing the lack of any indication by the BIA that “it could
not make efforts to preserve the status quo pending resolution
of the merits of [the Altos’] claims under the APA,” the
district court refused to dissolve the preliminary injunction.
The court proceeded, for purposes of ruling on the motion to
dismiss, to bifurcate the Altos’ first three causes of action
from the last two. Reiterating its earlier decision denying the
Tribe’s motions to dismiss the first three claims on federal
question or Rule 19 grounds, the court delayed adjudication
of the motions to dismiss with regard to claims four and five,
citing: (1) uncertainties regarding the Altos’ ability to
demonstrate subject matter jurisdiction over their fourth and
 ALTO V. BLACK 15

fifth claims for relief; (2) skepticism about the court’s ability
to proceed to the merits of those claims in the Band’s
absence; and (3) the possibility that a decision upholding the
Disenrollment Order would moot the fourth and fifth claims.

The Tribe timely appealed both the refusal to dissolve the
injunction and the denial of its motions to dismiss.

II. DISCUSSION

A. The Present Challenge to the Preliminary Injunction

We begin by clarifying the scope of the challenge before
us. The issuance of the preliminary injunction was not
appealed by either original party to the suit. And neither the
Altos nor the enjoined entity, the BIA, ask this court to
dissolve the injunction or modify its scope. Rather, the Band,
the intervenor in this action for limited purposes, appeals
from the district court’s refusal to dissolve the injunction and
to dismiss the case.

We have jurisdiction to review a district court’s refusal to
dissolve a preliminary injunction. See 28 U.S.C.
§ 1292(a)(1). Typically, “[a] party seeking modification or
dissolution of an injunction bears the burden of establishing
that a significant change in facts or law warrants revision or
dissolution of the injunction.” Sharp v. Weston, 233 F.3d
1166, 1170 (9th Cir. 2000). That requirement presumes that
the moving party could have appealed the grant of the
injunction but chose not to do so, and thus that a subsequent
challenge to the injunctive relief must rest on grounds that
could not have been raised before. See Transgo, Inc. v. Ajac
Transmission Parts Corp., 911 F.2d 363, 365 (9th Cir. 1990).
16 ALTO V. BLACK

Here, however, where the Band was permitted to
intervene only after the issuance of the injunction and only
for the limited purpose of filing jurisdictional motions, the
usual limitation on motions to dissolve injunctions is
inapposite. The Band, as a non-party, had no prior
opportunity to challenge the grant of the injunction. And it
does not challenge the substance of the district court’s
analysis as to whether injunctive relief was warranted.
Instead, consistent with the limited purposes for which it was
permitted to intervene, the Band sought dissolution of the
injunction on “jurisdictional” grounds.

On this appeal, therefore, we do not consider “the
propriety of the underlying order.” Sharp, 233 F.3d at
1169–70. To prevail on the issues that the Band can and does
raise, the Band must show that the district court erred by
applying an erroneous legal standard in determining either (1)
that it had subject matter jurisdiction to adjudicate the Altos’
claims and grant preliminary injunctive relief or (2) that it
was proper to proceed in the Band’s absence. See Credit
Suisse First Bos. Corp. v. Grunwald, 400 F.3d 1119, 1126 n.7
(9th Cir. 2005).

B. Scope and Substance of the Claims and the Injunctive
Relief

To review those issues, we must first clarify the scope of
the injunctive relief granted and the claims on which it rested.

In assessing whether injunctive relief was warranted, the
district court analyzed the Altos’ likelihood of success only
with respect to their first three causes of action, based on res
judicata, due process, and arbitrary and capricious agency
action. The court did not discuss the merits of the fourth
 ALTO V. BLACK 17

claim, related to the BIA’s fiduciary duty and failure to act to
protect the Altos’ access to tribal rights and benefits. The
harm alleged in the Altos first three claims stemmed from
purported errors in agency decisionmaking.

Typically, a preliminary injunction issued regarding APA
review of agency decisionmaking preserves the court’s
jurisdiction to grant complete relief by simply suspending the
implementation of challenged agency action pending full
court review. See, e.g., City of San Diego v. Whitman,
242 F.3d 1097, 1098 (9th Cir. 2001). The original injunction
issued in this case tracked the sort of preliminary relief
ordinarily available in APA cases insofar as it “restrained and
enjoined” the BIA, “for the duration of this lawsuit from
removing [the Altos] from the San Pasqual Tribe’s
membership roll and from taking any further action to
implement the [challenged Disenrollment Order.]”

The remainder of the original preliminary injunction,
paragraphs two through five, went further. It compelled the
BIA to take action to effect temporary restoration of the
Altos’ access to tribal rights and benefits.

Recognizing that the breadth of the district court’s order
was questionable, the BIA issued a Memorandum Order and
Report of Compliance that, in operative effect, treats the
district court injunction as only suspending the
implementation of the Disenrollment Order pending plenary
review of the agency’s action. While it addresses the impact
of a suspension of the Disenrollment Order on the Altos’
rights and benefits vis-a-vis the Band, the Memorandum
Order—except in one respect we discuss later—did not
command the Tribe to take any particular steps pertaining to
the Altos’ membership status. The legal obligations to which
18 ALTO V. BLACK

the Memorandum Order refers stem not from the coercive
power of the court or from the BIA’s authority over the Band,
but rather from separate federal laws and regulations, as well
as from tribal governing documents. See, e.g., 42 C.F.R.
Part 136 (establishing general principles and program
requirements for the Indian Health Service); Indian Civil
Rights Act (“ICRA”), 25 U.S.C. §§ 1301–03; Indian Gaming
Regulatory Act (“IGRA”), 25 U.S.C. §§ 2701–2721. Thus,
although the Memorandum Order states that the Secretary is
advising the Band “in compliance with the court’s order,”
judicial authority is not the operative force behind any weight
the Secretary’s words may carry.

Although asked to do so after the Secretary issued his
Memorandum Order, the district court did not compel the
BIA to comply with the injunction as originally issued. By
denying the Altos’ request to order the Secretary to provide
relief beyond that reflected in the Memorandum Order, the
court acceded to the BIA’s limited implementation of the
preliminary injunction. In practical effect, the district court’s
acquiescence in the Secretary’s partial compliance with the
injunction clarified the scope of the court’s order.
Accordingly, the operative injunction, and the one subject to
our review, encompasses only the suspension of the
implementation of the Disenrollment Order, which according
to the BIA’s Memorandum Order, will have certain impacts
on the Altos and the Band.

The Band contends that even the suspension of the
Disenrollment Order, as supplemented by the Memorandum
Order, is beyond the court’s jurisdiction, because the
Memorandum Order requires the Band to treat the Altos as
members and to provide them with the attendant rights and
benefits. The text of most of the Memorandum Order,
 ALTO V. BLACK 19

however, does not substantiate those concerns. Disapproving
the portions of the Memorandum Order that “advise” and
“notify” the Band of the implications of temporarily restoring
the Altos’ membership would have no effect on the Band’s
legal rights and obligations vis-a-vis the Altos during the
pendency of this suit. At this juncture, we therefore need not,
and do not, decide some difficult questions posed by the
injunction in its original formulation.

The one exception to the limited nature of the
Memorandum Order is the portion implementing the
injunction that states: “If the Alto descendants ultimately
prevail in this litigation, the Band must distribute the funds in
the escrow account [if one is created for the purpose of
holding all per capita gaming revenues distributed to the
Altos while this suit is pending] to the Alto descendants,
including distribution to the minors’ trust fund as set forth in
the Band’s approved RAP.” The injunction as a whole,
however, provides only preliminary relief, while the language
just quoted specifies what is to happen not now, but “[i]f the
Alto descendants ultimately prevail.” This coercive directive
therefore does not simply implement the court’s order
preserving the status quo pending its review of agency action.

We shall remand for the purpose of allowing the district
court formally to clarify the original injunction to conform to
the understanding of the now-operative injunction we have
just articulated—namely, as suspending the Disenrollment
Order while this suit is pending and as directing the BIA to
implement that suspension by advising the parties of its
impact. The part of the Memorandum Order mandating
distribution of escrowed funds if the Altos ultimately prevail
goes beyond that limited role, and so should not be approved
in the revised injunction.
20 ALTO V. BLACK

The Band’s jurisdictional arguments, if accepted, would
invalidate the injunction even as so clarified. We therefore
do not await the clarification but address the Band’s
arguments now.

C. Subject Matter Jurisdiction

The Band moved both to dissolve the preliminary
injunction and to dismiss claims one through three on the
ground that this case presents no federal question. Its
argument is that as the BIA’s disenrollment decision turned
solely on questions of tribal law and governance, there is no
jurisdiction under the APA. We disagree.

1. The Motions to Dissolve and to Dismiss

As we have stated, we have jurisdiction to review the
district court’s refusal to dissolve the injunction. 28 U.S.C.
§ 1292(a)(1). We typically would not have jurisdiction on
interlocutory appeal to review the district court’s concurrent
ruling on the Band’s motion to dismiss under Rule 12(b)(1).
Here, however, the basis asserted for dissolving the injunction
is lack of subject matter jurisdiction, the same issue that
underlies the Band’s appeal of the denial of its motion to
dismiss claims one through three for failure to state a federal
question. See Meredith v. Oregon, 321 F.3d 807, 814 (9th
Cir. 2003). So our “resolution of the issue properly raised on
interlocutory appeal”—dissolution of the injunction—
“necessarily resolves” the proper resolution of the motion to
dismiss. Id. (internal quotation marks omitted). As the two
issues both turn on the same jurisdictional analysis, review of
the denial of the motion to dismiss claims one through three
for lack of subject matter jurisdiction is properly “pendent”
to our review of the dissolution motion. Id.
 ALTO V. BLACK 21

“We review the district court’s ruling on subject matter
jurisdiction de novo.” Chilkat Indian Vill. v. Johnson,
870 F.2d 1469, 1470–71 (9th Cir. 1989).

2. The Propriety of Agency Action is a Federal
Question

The central issue in this suit concerns tribal membership
and its attendant rights and privileges. Federal courts
generally may not interfere with tribal enrollment decisions,
“[g]iven the often vast gulf between tribal traditions and those
with which federal courts are more intimately familiar . . . .”
Santa Clara Pueblo, 436 U.S. at 72 n.32 (citations omitted).
Because “[o]rdinarily[] federal courts lack jurisdiction to
consider an appeal from the decision of an Indian Tribe to
disenroll one of its members,” Jeffredo v. Macarro, 599 F.3d
913, 917 (9th Cir. 2010), we have regularly declined to
exercise jurisdiction over cases in which individuals are
seeking an order mandating BIA involvement in tribal
enrollment decisions.

Lewis v. Norton, for example, rejected the plaintiffs’
effort to “do an end run around tribal immunity” by asking
the court to order the Department of Interior to decide in the
first instance whether they should be enrolled as members
and afforded a share in tribal gaming revenues. 424 F.3d at
963. To adjudicate such an action would require the court to
evaluate the merits of the plaintiffs’ claim to membership
under tribal law—in effect, to review the tribe’s own
determination and intervene in its actions vis-a-vis its own
members. See Alvarado, 509 F.3d at 1016.

Here, however, the Altos do not ask the federal court to
decide ab initio whether they meet the Band’s enrollment
22 ALTO V. BLACK

criteria. Rather, they seek review under the APA’s arbitrary
and capricious standard of the Assistant Secretary’s action in
issuing the 2011 Disenrollment Order. And that action was
triggered by the Band’s own request, not that of the putative
tribal members.

We have previously assumed, without expressly deciding,
that we have jurisdiction to review agency action under the
APA even when the agency applies tribal law. For example,
Moapa Band of Paiute Indians v. U.S. Department of
Interior, 747 F.2d 563, 565–66 (9th Cir. 1984), applied APA
standards to review the Secretary of the Interior’s rescission
of a tribal ordinance, pursuant to authority granted to him by
the tribal constitution, without discussing federal question
jurisdiction. Similarly, Baciarelli v. Morton, 481 F.2d 610,
612 (9th Cir. 1973) (per curiam), applied APA standards to
review the Secretary of the Interior’s reinstatement of a tribal
council’s enrollment decision, without discussing jurisdiction.
These cases are not dispositive, because the present
jurisdictional issue was not squarely addressed. See Burbank-
Glendale-Pasadena Airport Auth. v. City of Burbank,
136 F.3d 1360, 1363 (9th Cir. 1998). But the cases are
persuasive authority that the exercise of jurisdiction here is
proper.

We said a bit more on the subject recently in Cahto Tribe:
“We have jurisdiction to review final agency action, 5 U.S.C.
§ 704, and the BIA’s 2009 decision was final for the
Department of the Interior.” 715 F.3d at 1228 (citation
omitted).8 Although Cahto Tribe asserted this court’s

8
The issue in Cahto Tribe was whether the BIA had jurisdiction, under
the tribe’s governing documents, to review an individual’s appeal from a
tribal disenrollment decision. 715 F.3d at 1226–29. The tribe in that case
 ALTO V. BLACK 23

jurisdiction to review, under the APA, the BIA action
challenged in that suit, it did not explain why that jurisdiction
can extend to BIA action that rests on tribal law.9 We take
the opportunity to do so now.

contended that its Articles of Association do not provide for an appeal of
a disenrollment decision to the BIA. We agreed. The Band has made no
such contention here—unsurprisingly, as it was the party that appealed to
the BIA. As the BIA’s authority to review the disenrollment decision of
the Band’s membership committee is not in dispute, we agree with the
parties that the BIA had jurisdiction to issue the challenged Disenrollment
Order.
9
Consistent with Moapa Band, Baciarelli, and Cahto Tribe, other
circuits have adjudicated APA causes of action in cases concerning Indian
affairs. The Eighth Circuit, for example, asserted jurisdiction over the
BIA’s decisions whether to recognize tribal governing bodies following
tribal elections, even though the recognition decision ultimately turns on
tribal law. See Runs After v. United States, 766 F.2d 347, 351 (8th Cir.
1985); Goodface v. Grassrope, 708 F.2d 335, 339 (8th Cir. 1983). The
court was careful, however, to limit the scope of federal jurisdiction to the
propriety of the BIA’s action under the APA, not the soundness of the
BIA’s decision under tribal law: “[The] resolution of such disputes
involving questions of interpretation of the tribal constitution and tribal
law is not within the jurisdiction of the district court.” Runs After,
766 F.2d at 352 (citing Grassrope, 708 F.2d at 338–39 & n.4).

The Second Circuit similarly implied that federal jurisdiction lies
where plaintiffs seek review of an agency decision concerning Indian
affairs. Shenandoah v. U.S. Department of Interior, 159 F.3d 708 (2d Cir.
1998), explained that a federal court lacks jurisdiction over an issue of
tribal law “in the absence of an initial determination by the [BIA],”
implying that where there is such an agency determination, even an issue
that involves the application of tribal law may properly come before a
federal court. Id. at 712 (emphasis added) (citing Grassrope and Runs
After). And the Federal Circuit has noted that, according to the Interior
Board of Indian Appeals, “[d]ecisions of the BIA made at the level of
Assistant Secretary or above, are apparently reviewable in district court.”
Kaw Nation v. Norton, 405 F.3d 1317, 1325 n.10 (Fed. Cir. 2005).
24 ALTO V. BLACK

Here, the Assistant Secretary issued the challenged
Disenrollment Order in his official capacity as a manager of
Indian affairs under 25 U.S.C. § 2, and in response to the
Band’s appeal. Current federal regulations, codified at 25
C.F.R. §§ 62.1–62.12, provide procedures for “filing and
processing of appeals from adverse enrollment actions by
[BIA] officials,” § 62.2, such as the Regional Director’s
decision the Band appealed here, and expressly permit tribal
committees to file appeals, see § 62.4(b), as the Band’s
committee did here. Those regulations make clear that the
challenged Disenrollment Order is “final agency action”
within the meaning of the APA, 5 U.S.C. § 704. See § 62.11.

Moreover, the Assistant Secretary’s resolution of the
enrollment dispute was consistent with the authority vested in
him by Article III, section 2 of the Band’s Constitution. The
1960 Regulations specifically required the Secretary to
approve the deletion of individuals members’ names from the
Band’s roll, see 25 C.F.R. § 48.14(d) (1960). So the Band’s
current Constitution, which expressly incorporates those
regulations, does so as well. And, by reason of that same
incorporation, the Secretary’s decision is not “committed to
agency discretion by law,” 5 U.S.C. § 701(a)(2). Rather, the
Secretary must apply the tribe’s own enrollment criteria, and
is required to identify the information relied upon in reaching
his decision. See 25 C.F.R. §§ 62.10–62.11.

The APA provides that “[a] person suffering legal wrong
because of agency action, or adversely affected or aggrieved
by agency action within the meaning of a relevant statute, is
entitled to judicial review thereof.” Darby v. Cisneros,
509 U.S. 137, 146 (1993) (quoting 5 U.S.C. § 702). APA
§ 704, in turn, specifically provides for judicial review of
final agency action “for which there is no other adequate
 ALTO V. BLACK 25

remedy in a court.” 5 U.S.C. § 704. As these provisions
reflect, Congress’s understanding in passing the APA was
that “judicial review should be widely available to challenge
the actions of federal administrative officials.” Califano v.
Sanders, 430 U.S. 99, 104 (1977). The APA therefore creates
a “strong presumption that Congress intends judicial review
of administrative action.” Bowen v. Mich. Acad. of Family
Physicians, 476 U.S. 667, 670 (1986); see also INS v. St. Cyr,
533 U.S. 289, 298 (2001).

That the substantive law to be applied in this case is tribal
law does not affect our jurisdiction over an APA challenge to
the BIA’s decision. “[I]t is common ground that if review is
proper under the APA, the District Court ha[s] jurisdiction
under 28 USC § 1331.” Bowen v. Massachusetts, 487 U.S.
879, 891 n.16 (1988); see also Sharkey v. Quarantillo,
541 F.3d 75, 83–84 (2d Cir. 2008) (holding that § 1331
confers jurisdiction over a suit that “arises under” a “right of
action” created by the APA); Runs After, 766 F.2d at 351
(citing Grassrope, 708 F.2d at 338). The federal question for
§ 1331 purposes is whether the BIA violated the APA; that it
is claimed to have done so in a case involving application of
tribal law does not matter, any more than it would matter to
§ 1331 jurisdiction over an APA case involving an issue of
state law.

South Delta Water Agency v. U.S. Department of Interior,
Bureau of Reclamation, 767 F.2d 531 (9th Cir. 1985), for
example, affirmed § 1331 jurisdiction to review, under the
APA, the federal government’s operation of a water project
in a manner that allegedly violates state law. That case
reasoned that “[s]tate law . . . adequately constrains the
federal defendants’ rights by providing ‘law to be applied,’”
under 5 U.S.C. § 706, so “therefore, review is proper under
26 ALTO V. BLACK

the APA.” Id. at 539. Similarly, here, the Band’s
Constitution, and the 1960 Regulations incorporated therein,
constrain the Secretary’s actions by providing the “law to be
applied,” such that review under the APA is proper.

The Altos’ first three causes of action all concern the
manner in which the Assistant Secretary exercised his
authority to review the Band’s enrollment determination.
Claims one through three therefore both seek review of final
agency action and raise a federal question under the APA,
over which we have jurisdiction.

In sum, we have jurisdiction over the Altos’ challenges to
the BIA’s determination of the tribal enrollment decision.
The district court properly declined to dissolve the injunction
and to dismiss the case on subject matter jurisdiction grounds.

D. Rule 19 Required Party Analysis

We turn next to the Band’s alternative contention—that
it is a required party with regard to claims one, two, and
three, so that preliminary injunctive relief as to those claims
could not be granted in its absence.

Joinder is not itself jurisdictional. See Wilbur v. Locke,
423 F.3d 1101, 1106–07 (9th Cir. 2005), abrogated on other
grounds by Levin v. Commerce Energy, Inc., 130 S. Ct. 2323
(2010). In this case, however, joinder of the Band, if
required, would in turn raise sovereign immunity questions
regarding the propriety of any adjudication of the Altos’
claims. If the Band is a required party for the causes of action
underlying the injunction, then the propriety of the relief
granted by the district court depends, first, on whether the
Band’s joinder would be precluded by tribal sovereign
 ALTO V. BLACK 27

immunity, which the Band has invoked, see, e.g., Maxwell v.
Cnty. of San Diego, 708 F.3d 1075, 1086 (9th Cir. 2013); and
second, if so, whether the court can “in equity and good
conscience” proceed to adjudicate those claims without the
Band. See Fed. R. Civ. P. 19(b); see also Wilbur, 423 F.3d at
1114–15 (applying the Rule 19(b) factors to a sovereign
tribe).

Moreover, the Rule 19 inquiry would, if resolved in the
Band’s favor, result in dissolving the injunction. There
would then be no likelihood of success on the merits. Yet,
the Band had no opportunity fully to litigate that issue until
permitted to intervene for limited purposes. Thus embedded
in the Rule 19 issue in this case is a quasi-jurisdictional
issue—sovereign immunity—as to which the affected party
would ordinarily be entitled to appeal denial of a motion to
dismiss. See Terenkian v. Republic of Iraq, 694 F.3d 1122,
1131 (9th Cir. 2012) (citing Phaneuf v. Republic of Indon.,
106 F.3d 302, 304 (9th Cir. 1997)); Doe v. Holy See, 557 F.3d
1066, 1074 (9th Cir. 2009) (per curiam). Review of the
Band’s Rule 19 arguments as they pertain to the claims
covered by the preliminary injunction is therefore properly
before us.

We review the district court’s denial of the Band’s Rule
19 motion for abuse of discretion, but review the legal
conclusions underlying that determination de novo. Salt
River Project Agric. Improvement & Power Dist. v. Lee,
672 F.3d 1176, 1179 (9th Cir. 2012); see also Disabled
Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861,
879 (9th Cir. 2004).

The first step in compulsory joinder analysis is to
determine whether the Band is a required party to the action.
28 ALTO V. BLACK

Joinder of the Band is “required” if either: (1) the court
cannot accord “complete relief among existing parties” in the
Band’s absence, or (2) proceeding with the suit in its absence
will “impair or impede” the Band’s ability to protect a
claimed legal interest relating to the subject of the action, or
“leave an existing party subject to a substantial risk of
incurring double, multiple, or otherwise inconsistent
obligations because of the interest.” Fed. R. Civ. P.
19(a)(1)(A)–(B); Shermoen v. United States, 982 F.2d 1312,
1317 (9th Cir. 1992). We examine each factor in turn. Only
if we determine that the Band is a required party do we
proceed to the second Rule 19 inquiry: whether joinder is
feasible, or is barred by sovereign immunity. Finally, only if
joinder is impossible must we determine whether, in “equity
and good conscience,” the suit should be dismissed. See Fed.
R. Civ. P. 19(a)–(b); EEOC v. Peabody W. Coal Co.,
400 F.3d 774, 779–80 (9th Cir. 2005); Dawavendewa v. Salt
River Project Agric. Improvement & Power Dist., 276 F.3d
1150, 1155 (9th Cir. 2002) (quoting Confederated Tribes of
Chehalis Indian Reservation v. Lujan, 928 F.2d 1496, 1498
(9th Cir. 1991)); Makah Indian Tribe v. Verity, 910 F.2d 555,
558 (9th Cir. 1990). This determination is necessarily fact-
and circumstance-specific. Confederated Tribes, 928 F.2d at
1498.

As will appear, we resolve the Rule 19 question at step
one.

1. Complete Relief

Complete relief “is concerned with consummate rather
than partial or hollow relief as to those already parties, and
with precluding multiple lawsuits on the same cause of
action.” Disabled Rights, 375 F.3d at 879 (citations and
 ALTO V. BLACK 29

internal quotation marks omitted). To be “complete,” relief
must be “meaningful relief as between the parties.” Id.
(emphasis added).

Ruling for the Altos on any or all of their first three
claims would mean vacating the Disenrollment Order and,
unless determined to be barred by res judicata (as the Altos
maintain in their first claim for relief), remanding to the BIA
for redetermination of the Altos’ enrollment status. That
relief is “meaningful” as between the Alto descendants and
the BIA, even if it does not bind the Tribe directly.

In several past cases involving Rule 19 motions by Indian
tribes, we have held it impossible to afford complete relief
because the court’s judgment would not bind the absent tribe.
See, e.g., Dawavendewa, 276 F.3d at 1155–56; Confederated
Tribes, 928 F.2d at 1498. In those cases, however, the injury
complained of was a result of the absent tribe’s action, not
only or principally that of the named agency defendant. Such
is not the case here with respect to the Altos’ first three
causes of action.

In Dawavendewa, for example, the plaintiff challenged a
provision of a lease agreement between the defendant power
company and the Navajo Nation, the lessor of the land on
which the company operated a facility. See 276 F.3d at
1153–54. The provision required the power company to give
members of the Navajo tribe preferential treatment in hiring.
Id. at 1153. We held that the Navajo Nation was a necessary
party to the suit because the court could not assure the
plaintiff his requested relief—employment by the
defendant—in the Nation’s absence. Even if the court ruled
in the plaintiff’s favor and enjoined the defendant–lessee
from applying the challenged lease condition, the tribe could
30 ALTO V. BLACK

still “move to enforce its rights under the lease and ultimately
evict the employer from the reservation,” Disabled Rights,
375 F.3d at 880 (discussing Dawavendewa), and insist on
enforcing the provision with a new lessee. See
Dawavendewa, 276 F.3d at 1155–58.

We reached a similar conclusion in Confederated Tribes.
There, a group of Indian tribes brought suit to enjoin the
federal government from negotiating with the Quinault
Nation as the sole governing authority for the Quinault
Nation Indian Reservation, requesting a declaratory judgment
rejecting the Quinault Nation’s exclusive governing status.
928 F.2d at 1497. But the plaintiffs did not name the Nation
as a party. We concluded that joinder of the Quinault Nation
was necessary because a judgment against the federal
defendants would not bind the Nation, which could continue
to “assert sovereign powers and management responsibilities
over the reservation,” the very practice that prompted the
plaintiffs’ complaint. Id. at 1498.

Here, in contrast, the injury complained of in the first
three causes of action is the BIA’s violation of the APA in
carrying out a responsibility delegated to it by the Band,
under the Band’s own Constitution. The injury resulted from
the Secretary’s actions in ruling the Altos ineligible for tribal
membership, not from the Band’s prior actions with regard to
the membership issue. Vacating or reversing the
Disenrollment Order, and remanding if necessary for
rehearing, would afford the Altos complete relief as to their
first three causes of action. We may assume that the Band
will then abide by the BIA’s decision, as it is committed by
its own Constitution to do, and will also, consistently with its
Constitution, provide the Altos with the various requisites of
membership.
 ALTO V. BLACK 31

Should that not occur, then questions regarding the
availability of further BIA and judicial enforcement will
arise. Some of those questions may be addressed, or
anticipated, in the fourth and fifth causes of action in the
Altos’ First Amended Complaint. But as we have explained,
those causes of action are not presently before us. As to the
three causes of action that are before us, complete
relief—that is, relief limited to that available in an APA cause
of action, which is affirmation, reversal or remand of the
agency action—can be provided between the parties. The
practical implications of the Secretary’s decision for the
Altos’ entitlement to tribal rights and benefits hinge not on
any court order, but on the Band’s legal duties to its
members, under its own governing documents and applicable
federal law.

In short, the Tribe’s absence does not preclude “complete
relief” as to the Altos’ first three causes of action.

2. Protection of Legal Interests and Avoidance of
Inconsistent Obligations

The second factor in determining whether an absent
party’s joinder is required “focuses on whether the absent
party’s participation is necessary to protect its legally
cognizable interests or to protect other parties from a
substantial risk of incurring multiple or inconsistent
obligations because of those interests.” Disabled Rights,
375 F.3d at 880; see also Fed. R. Civ. P. 19(a)(1)(B)(i) & (ii).
The Band asserts interests in ensuring that only qualified
individuals are enrolled and in maintaining its sovereignty
over membership matters.
32 ALTO V. BLACK

“As a practical matter, an absent party’s ability to protect
its interest will not be impaired by its absence from the suit
where its interest will be adequately represented by existing
parties to the suit.” Washington v. Daley, 173 F.3d 1158,
1167 (9th Cir. 1999). We consider

three factors in determining whether existing
parties adequately represent the interests of
the absent tribes: whether ‘the interests of a
present party to the suit are such that it will
undoubtedly make all’ of the absent party’s
arguments; whether the party is ‘capable of
and willing to make such arguments’; and
whether the absent party would ‘offer any
necessary element to the proceedings’ that the
present parties would neglect.

Shermoen, 982 F.2d at 1318 (quoting Cnty. of Fresno v.
Andrus, 622 F.2d 436, 439 (9th Cir. 1980)). Applying those
factors, we conclude that the Band’s interest in limiting
enrollment to qualified individuals is adequately represented
by the BIA.

First, the United States shares with the Tribe an interest
in defending the Assistant Secretary’s Disenrollment Order,
which granted precisely the relief the Tribe sought when it
appealed to the BIA. The BIA has, to date, vigorously
defended its Disenrollment Order on its merits. The Band has
not presented any arguments that it would offer in defense of
the Order which the BIA has not or would not make.

Second, consistent with its fiduciary responsibility to
Indian tribes, the BIA has repeatedly avowed its intention and
ability to represent the Band’s interests with respect to the
 ALTO V. BLACK 33

APA aspects of the complaint, claims one through three.
“[T]he federal government, including the Secretary, has a
trust responsibility to the Tribe[],” as a trustee, which
“obligates the Secretary to protect the Tribe[’s] interests in
this matter.” Daley, 173 F.3d at 1168.

To be sure, conflicts can arise between the United States
and an Indian tribe; when they do, the government cannot
adequately represent the tribe’s interests. Id. at 1167. But no
such conflict has surfaced to this point in this case, as the
district court, and now this court, has addressed only claims
one through three in the Altos’ complaint. The Assistant
Secretary is defending the very order requested by the Band,
which strips the Altos of their status as members of a
federally recognized tribe. It cannot be said that the
Secretary’s trust obligations to the Band are at odds with the
BIA’s obligations to the Altos, whose membership the Band
contests. As the BIA points out:

[I]t is inherent in the process the Tribe created
in its Constitution for the determination of
membership in the Tribe, and the
disenrollment of members whose enrollment
was based on inaccurate information, that the
final decision maker, the Secretary of the
Interior, have fiduciary duties to both the
Tribe and any Indians whose membership in
the Tribe is in dispute. Since those duties did
not deter the Tribe from making the Secretary
of the Interior the final decision maker, they
should not prevent him from defending his
decision.
34 ALTO V. BLACK

Finally, because the court’s review of the Disenrollment
Order is limited to the administrative record before the BIA,
see Fence Creek Cattle Co. v. U.S. Forest Serv., 602 F.3d
1125, 1131 (9th Cir. 2010), the Tribe could not offer new
evidence in the judicial proceedings that would materially
affect the outcome of claims one through three.

The Band also points to a dispute over the interpretation
of tribal law as evidence that the United States cannot
adequately represent its interests. Specifically, the Tribe
maintains that the Disenrollment Order took immediate effect
upon issuance, whereas the district court concluded (and the
BIA initially argued) that the Altos would retain their
membership status until the Secretary of the Department of
Interior approves a revised membership roll for the Band, on
which the Altos’ names do not appear.10 But the ability of the
district court to afford complete relief on the Altos’ first three
claims does not turn on the resolution of this dispute.

If the Disenrollment Order is invalidated and the case
remanded to the agency, then the effective date of the order
will be of no consequence: the Altos would have remained
members of the Tribe throughout the pendency of this
dispute, and would be entitled to any attendant benefits as
provided in the tribe’s governing documents and applicable
federal law. If, on the other hand, the Disenrollment Order is
upheld, then questions concerning the date of the Altos’
disenrollment can be addressed by the appropriate body or
bodies, whether that be the Band alone or the Band with an
appeal to the BIA. Finally, during the pendency of this
litigation, under the district court injunction as clarified and

10
The Altos’ fifth cause of action seeks a declaratory judgment to this
effect.
 ALTO V. BLACK 35

implemented by the Memorandum Order, any disenrollment
date does not matter, as the Disenrollment Order is
inoperative.

As to the Band’s legal interest in maintaining sovereign
control over membership issues, granting the relief requested
in claims one through three—vacatur of the BIA’s
Order—would not undermine authority the Tribe would
otherwise exercise. The Tribe itself has delegated its
authority over enrollment to the BIA. See Const. of Band,
art. III, § 2. The Altos do not seek to alter the Band’s rights
vis-a-vis enrollment decisions. Any attempt to do so in the
Band’s absence would clearly be impermissible. See Pit
River Home & Agric. Coop. Ass’n v. United States, 30 F.3d
1088, 1099 (9th Cir. 1994) (holding that a tribal council was
a necessary party in a suit challenging the council’s
designation by the Secretary of Interior as the beneficiary of
reservation property); Confederated Tribes, 928 F.2d at
1498–99 (holding the Quinault Nation a necessary party in a
suit challenging the United States’ recognition of the Nation
as the sole governing authority of a reservation). Rather,
temporarily making the Disenrollment Order unenforceable
is akin to staying removal in the immigration context; it
“operates only upon the . . . proceeding itself,” and does not
impose a coercive order on any sovereign entity. Cf. Leiva-
Perez v. Holder, 640 F.3d 962, 966 (9th Cir. 2011) (per
curiam) (citation and internal quotation marks omitted).

In sum, complete relief can be afforded in the Band’s
absence as to the Altos’ claims regarding the propriety of the
Assistant Secretary’s Disenrollment Order. Because the
Tribe is not a necessary party to the first three causes of
action, the district court did not err in declining to decide
whether tribal sovereign immunity bars the Band’s joinder,
36 ALTO V. BLACK

and if so, whether the action should be dismissed under Rule
19(b).

E. The Motions to Dismiss Claims Four and Five

The Band urges us to review the disposition of its motions
to dismiss the fourth and fifth causes of action. But as the
district court made clear in the order under review, the
clarified preliminary injunction does not rest on the Altos’
fourth and fifth claims.11 Determining whether the court has
subject matter jurisdiction over claims four and five, or
whether the Band is a required party to those claims, is
therefore not necessary to our review of the order refusing to
dissolve the injunction. Consequently, our pendent
jurisdiction does not extend to the Band’s motions to dismiss
those claims.

Nor do the Band’s motions on claims four and five
independently fall under the collateral order aspect of the
final judgment rule. The collateral order doctrine, first
articulated in Cohen v. Beneficial Industrial Loan Corp.,
337 U.S. 541, 546–47 (1949), permits review as if they were
final decisions of a “small class” of orders that: “(1)
conclusively determine the disputed question; (2) resolve an
important issue completely separate from the merits of the
action; and (3) would effectively be unreviewable on appeal
from a final judgment.” Rodriguez v. Lockheed Martin

11
To the degree that the Altos’ fourth and fifth claims seek further relief
beyond the clarified injunction on a different legal basis—namely, that the
BIA has a fiduciary duty to ensure their access to tribal rights and
benefits—the district court has not addressed that legal question, so there
is no pendent issue before us.
 ALTO V. BLACK 37

Corp., 627 F.3d 1259, 1264 (9th Cir. 2010) (citation,
alterations, and internal quotation marks omitted).

The district court’s order deferring adjudication of the
Band’s motion to dismiss the Altos’ fourth and fifth causes of
action does not satisfy the first of these criteria. “An order
deferring a ruling is not conclusive.” Miller v. Gammie,
335 F.3d 889, 895 (9th Cir. 2003) (en banc). Moreover, even
if we were to construe the district court’s deferred ruling on
the motion regarding claims four and five as a decision
declining to dismiss, as the Band asks us to do, we would not
have jurisdiction to review that decision now. The denial of
the Band’s Rule 12(b)(1) motion to dismiss claims four and
five for lack of subject matter jurisdiction is not appealable
under the collateral order doctrine. See Catlin v. United
States, 324 U.S. 229, 236 (1945); Kwai Fun Wong v. United
States, 373 F.3d 952, 960 (9th Cir. 2004); United States v.
Atwell, 681 F.2d 593, 594 (9th Cir. 1982) (citing United
States v. Layton, 645 F.2d 681, 683 (9th Cir. 1981)).

Nor is the denial of the Band’s Rule 12(b)(7) motion to
dismiss those claims for inability to join a required party
under Rule 19 among the narrow class of rulings collaterally
appealable. One criterion for application of the collateral
order doctrine is that the order “would effectively be
unreviewable on appeal from a final judgment.” Rodriguez,
627 F.3d at 1264. Courts can, and do, effectively review and
correct Rule 19 decisions after final judgment, including by
ordering dismissal at that point of the lawsuit, as otherwise
appropriate, if a required party cannot be joined. See, e.g.,
Provident Tradesmens Bank & Trust Co. v. Patterson,
390 U.S. 102, 110–12 (1968) (considering a party’s
indispensability under Rule 19(b) on an appeal from a final
judgment); Universal Reinsurance Co. v. St. Paul Fire &
38 ALTO V. BLACK

Marine Ins. Co., 312 F.3d 82, 87–89 (2d Cir. 2002) (same);
United States v. San Juan Bay Marina, 239 F.3d 400, 405–07
(1st Cir. 2001) (same); Gardiner v. V.I. Water & Power
Auth., 145 F.3d 635, 640–43 (3d Cir. 1998) (same). Although
no Ninth Circuit opinion so states, other circuits have held
that a Rule 19 determination is not immediately appealable,
because it can be reviewed after a final judgment. See, e.g.,
Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1148
(10th Cir. 2011); MasterCard Int’l Inc. v. Visa Int’l Serv.
Ass’n, 471 F.3d 377, 383–84 (2d Cir. 2006); Price v. J & H
Marsh & McLennan, Inc., 493 F.3d 55, 63 (2d Cir. 2007).
We find the reasoning of these cases persuasive, and so hold
as well.

We recognize that the district court’s denial of a motion
to dismiss on grounds of sovereign immunity is immediately
appealable under the collateral order doctrine. See Terenkian,
694 F.3d at 1131 (citing Phaneuf, 106 F.3d at 304); Holy See,
557 F.3d at 1074. Thus, had the Band been named as a party
and then moved to dismiss the suit on grounds of tribal
immunity, the district court’s denial of such a motion or
refusal to rule on it would be subject to interlocutory appeal.
But that exception does not apply here. The Band’s
immunity argument is of a second order; we would reach it
only if we first reversed the district court’s determination
under Rule 19(a) that the Band was not a required party for
claims four and five. But as those claims are not presently
before us, we have no reason to reach that question. And
unless and until the Band is determined to be a required party
for purposes of claims four and five, the sovereign immunity
issue does not arise. The immunity issue regarding claims
four and five is therefore premature, and we may not reach it,
via the collateral order doctrine or otherwise.
 ALTO V. BLACK 39

In sum, we lack jurisdiction at this stage to review
whether the Altos’ fourth and fifth claims should be
dismissed under either 12(b)(1) or 12(b)(7).

III. CONCLUSION

The district court properly exercised subject matter
jurisdiction over the Altos’ claims challenging the agency’s
final action and correctly concluded that the Band is not a
required party to the resolution of those claims. Accordingly,
the Band has demonstrated no basis for dissolving the
preliminary injunction presently in effect, as articulated in the
BIA’s Memorandum Order.

For the foregoing reasons, we AFFIRM the district
court’s denial of the Band’s motion to dissolve the
preliminary injunction as limited by the BIA’s Memorandum
Order, prohibiting the BIA from giving effect to the
Disenrollment Order pending adjudication of this suit. But
we REMAND to allow the district court formally to clarify
the original injunction to conform with the understanding of
the injunction we have described. We likewise AFFIRM the
denial of the motion to dismiss claims one through three of
the Altos’ First Amended Complaint. Finally, we DISMISS
for lack of jurisdiction the Band’s appeal as to its motion to
the dismiss claims four and five.

AFFIRMED IN PART, DISMISSED IN PART, AND
REMANDED.