California Valley Miwok Tribe v. California Gambling Control Commission

Filed 11/21/14

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

CALIFORNIA VALLEY MIWOK TRIBE, D064271

Plaintiff and Appellant,

v. (Super. Ct. No. 37-2008-00075326-
CU-CO-CTL)
CALIFORNIA GAMBLING CONTROL
COMMISSION,

Defendant and Respondent;

CALIFORNIA VALLEY MIWOK TRIBE et
al.,

Intervenors and Respondents.

APPEAL from a judgment of the Superior Court of San Diego County, Ronald L.

Styn, Judge. Affirmed.

Manuel Corrales, Jr.; Singleton & Associates and Terry Singleton for Plaintiff and

Appellant.

Kamala D. Harris, Attorney General, Sara J. Drake, Assistant Attorney General,

and Neil D. Houston, Deputy Attorney General, for Defendant and Respondent.
 Sheppard, Mullin, Richter & Hampton, John D. Collins, Richard M. Freeman,

Matthew S. McConnell and James F. Rusk for Intervenors and Respondents.

California Valley Miwok Tribe (the Tribe) appeals following a summary judgment

in favor of defendant California Gambling Control Commission (the Commission). In

granting summary judgment, the trial court ruled that until the federal Bureau of Indian

Affairs (BIA) indicates, by entering into contract for federal benefits with the Tribe, that

an internal tribal dispute about the Tribe's membership and leadership has been resolved,

the Commission is justified in continuing to hold in trust for the Tribe certain funds

generated from Indian gaming in California that the Commission is required to distribute

to the Tribe on a quarterly basis. As we will explain, we conclude that the trial court

properly granted summary judgment in favor of the Commission, and accordingly we

affirm the judgment.

I

FACTUAL AND PROCEDURAL BACKGROUND

This matter returns to us for a third time. In our last opinion, we issued a writ of

mandate directing the trial court to lift the stay it had imposed and to allow the parties to

file dispositive motions.1 The parties filed dispositive motions, and the trial court

1 The two previous opinions in this matter are: California Valley Miwok Tribe v.
California Gambling Control Commission (Apr. 16, 2010, No. D054912) (2010 Opinion)
and California Valley Miwok Tribe v. California Gambling Control Commission (Dec.
18, 2012, No. D061811) (2012 Opinion).

2
resolved them, entering judgment in favor of the Commission on its motion for summary

judgment, which the Tribe now appeals.

To resolve the instant appeal, we once again review the factual and procedural

background of this dispute, adding to our previous chronology the most recent

developments in the ongoing tribal membership and leadership dispute involving the

Tribe. Although the notice of appeal was filed in July 2013, both the Commission and

the Tribe have asked us to take judicial notice of a December 13, 2013 order by the

United States District Court for the District of Columbia in the federal litigation

involving the Tribe. (California Valley Miwok Tribe v. Jewell (D.D.C. 2013) 5

F.Supp.3d 86 (Jewell).)2 We grant the parties' requests to take judicial notice of Jewell.3

Accordingly, we conduct our de novo review of the summary judgment ruling taking into

account the current status of the federal proceedings involving the Tribe as reflected in

Jewell. Also, in the course of our preliminary discussion, we refer to Jewell for

background on the dispute over the Tribe's membership and leadership.

2 In our previous opinions, we referred to the pending litigation in the district court
as "Salazar," based on the name of the Secretary of the Department of the Interior at the
time. The case name has changed and now reflects the name of the current Secretary of
the Department of the Interior, Sally Jewell.

3 The Tribe has filed other requests for judicial notice, some of which are opposed.
We grant the unopposed requests, and accordingly take judicial notice of exhibits 1, 2, 3,
5, 7 and 8. We deny judicial notice of the documents that are opposed by the
Commission, namely exhibits 4 and 6, as neither document is necessary to our analysis of
the issues on appeal. (Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998)
18 Cal.4th 739, 748, fn. 6 [declining to take judicial notice of materials not "necessary,
helpful, or relevant"].)

3
A. The Commission Withholds Funds from the Tribe

As we previously explained, pursuant to the Indian Gaming Regulatory Act of

1988 (18 U.S.C. § 1166 et seq.; 25 U.S.C. § 2701 et seq.), the State of California has

entered into tribal-state gaming compacts with the various tribes in California authorized

to operate gambling casinos (collectively, the Compacts).4 (See Gov. Code,

§§ 12012.25-12012.53 [ratifying tribal-state gaming compacts].) The Compacts set forth

a revenue-sharing mechanism under which tribes who operate less than 350 gaming

devices share in the license fees paid by the tribes entering into the Compacts, so that

each "Non-Compact Tribe" in the State receives the sum of $1.1 million per year.

(Compacts, § 4.3.2.1.) Non-Compact Tribes are defined as "[f]ederally recognized tribes

that are operating fewer than 350 Gaming Devices . . . ." (Compacts, § 4.3.2.(a)(i).) It is

undisputed that the Tribe is a Non-Compact Tribe, as it operates no gaming devices and

is federally recognized.5

The annual payment of $1.1 million to each Non-Compact Tribe is drawn from the

Revenue Sharing Trust Fund (RSTF) described in the Compacts. (Compacts, § 4.3.2.1.)

The Commission administers the RSTF, with the Compacts providing that "[t]he

4 We quote from the Compacts as entered into by the State of California with
various tribes in 1999. As the Commission points out, however, the standard language
used in more recent compacts between the State of California and other tribes is different
from the language used in earlier compacts. We do not find the differences in the more
recent compacts to be significant to our analysis.

5 It is undisputed that the Tribe is identified on the annual list of federally
recognized Indian tribes published in the Federal Register. At the Tribe's request, we
have taken judicial notice of the most recent version of the list.

4
Commission shall serve as the trustee of the [RSTF]." (Compacts, § 4.3.2.1(b).)

According to the Compacts, "[t]he Commission shall have no discretion with respect to

the use or disbursement of the trust funds. Its sole authority shall be to serve as a

depository of the trust funds and to disburse them on a quarterly basis to Non-Compact

Tribes." (Compacts, § 4.3.2.1(b).) Further, a provision in the Government Code directs

that the Commission "shall make quarterly payments from the Indian Gaming Revenue

Sharing Trust Fund to each eligible recipient Indian tribe within 45 days of the end of

each fiscal quarter." (Gov. Code, § 12012.90, subd. (e)(2).)

The Commission does not dispute that, like all Non-Compact Tribes, the Tribe is

eligible for an annual $1.1 million payment under the terms of the Compacts. However,

starting in 2005, the Commission, acting as trustee of the RSTF, suspended its quarterly

disbursements to the Tribe and decided to hold the funds indefinitely in trust for the Tribe

for later distribution. The Commission began withholding the distribution of the RSTF

funds to the Tribe when it became aware of a dispute over the tribe's membership and

leadership as evidenced by ongoing proceedings and litigation involving the BIA's

relationship with the Tribe. As the Commission recently explained in correspondence to

the Tribe, the Commission "contends that its designation as trustee of the RSTF impliedly

requires it to take reasonable steps to ensure that RSTF funds are disbursed to individuals

or groups properly authorized to receive and administer the funds on behalf of their

respective tribes." The Commission "takes the position that it lacks the authority or

jurisdiction to independently assess the legitimacy of a purported tribal leader or tribal

leadership group, and instead relies upon the assessments and conclusions of the

5
Department of the Interior, acting through the Bureau of Indian Affairs . . . , as reflected

in the final administrative actions of that agency." Therefore, the Commission has

suspended its disbursement of the RSTF funds to the Tribe "pending [the] BIA's

recognition of an authorized . . . Tribe leader or leadership group with which to conduct

its government[-]to[-]government business." As of March 6, 2013, the Commission was

holding $8,763,000.99, exclusive of interest, of the RSTF funds payable to the Tribe.

B. The Tribe's Leadership and Membership Dispute and Its Litigation with the
Federal Government

The long-running dispute over the Tribe's membership and leadership was recently

detailed in Jewell. As our resolution of this appeal requires an understanding of the

nature of the current dispute, we turn to Jewell for that information.

"In 1906, Congress authorized the BIA to purchase land for use by Indians in

California who lived outside reservations or who lived on reservations that did not

contain land suitable for cultivation." (Jewell, supra, 5 F.Supp.3d at p. 88.) In 1915, a

federal agent located the " 'Sheepranch Indians,' " whose number had purportedly

"dwindled down to '13 in number,' " and in 1916, "the BIA acquired approximately 0.93

acres in Calaveras County, California for the benefit of these Indians." (Id. at pp. 88-89.)

"The land became known as the 'Sheep Ranch Rancheria' and was held in trust for the

Indians by the Federal government." (Id. at p. 89.)

"In 1966, during a period in which the Federal government sought to terminate the

Federal trust relationship with various Indian tribes, the BIA reached out to the Sheep

Ranch Rancheria in order to distribute the assets of the Rancheria to its members as a

6
prelude to termination of the trust relationship. . . . The BIA discovered that the only

home on the Rancheria that remained occupied was that of Mabel Hodge Dixie,

presumably the granddaughter of Peter and Annize Hodge, who were identified in the

1915 census of the Sheepranch Indians. . . . The BIA determined that Mabel was the only

Indian entitled to receive the assets of the Rancheria, and she voted to accept the

distribution plan and was issued a deed to the land. . . . However, the BIA failed to take

the steps necessary to complete the termination of Sheep Ranch Rancheria." (Jewell,

supra, 5 F.Supp.3d at p. 89, citations omitted.)

"Mabel died in 1971. . . . A probate was ordered and the Administrative Law

Judge issued an Order of Determination of Heirs on October 1, 1971, reaffirmed by a

subsequent Order issued on April 14, 1993. . . . The Order listed the following

individuals as possessing a certain undivided interest in the Sheep Ranch Rancheria:

Merle Butler (Mabel's common law husband) and Mabel's four sons Richard Dixie,

Yakima Dixie, Melvin Dixie, and Tommy Dixie." (Jewell, supra, 5 F.Supp.3d at pp. 89-

90, citations omitted.)

Of Mabel's five heirs, by 1998, only Yakima and Melvin were still living. (Jewell,

supra, 5 F.Supp.3d at p. 90.)6 In the 1990's Silvia Burley contacted the BIA for

information on her Indian heritage. (Ibid.) The BIA determined that Burley might be

6 To avoid confusion, we follow Jewell's practice of referring to Yakima Dixie by
his first name, and we intend no disrespect by doing so.

7
remotely related to a prior member of the Sheep Ranch Rancheria and put her in contact

with Yakima. (Ibid.)

In August 1998, Yakima purportedly signed a statement agreeing to enroll Burley;

her two children, Rashel Reznor and Anjelica Paulk; and her granddaughter, Tristian

Wallace, into the Tribe. (Jewell, supra, 5 F.Supp.3d at p. 90.) "The statement lists

Yakima as 'spokesperson/Chairman of the Sheep Rancheria' but does not mention

Melvin. . . . Nor does it describe what criteria, if any, Yakima used to determine whether

Burley and her daughters/granddaughter were eligible for tribal membership." (Ibid.,

citations omitted.)

BIA representatives met with Yakima and Burley in September 1998, apparently

to start the process of formally organizing the Tribe.7 (Jewell, supra, 5 F.Supp.3d at

p. 90.) The BIA followed up with a letter, which stated, "(1) the Tribe is 'held to the

Order of the [probate] Administrative Law Judge' for 'purposes of determining the initial

membership of the Tribe'; (2) Yakima and Melvin, as the only remaining heirs, 'are those

persons possessing the right to initially organize the Tribe'; (3) because Yakima 'accepted

Silvia Burley, Rashel Reznor, Anjelica Paulk, and Tristian Wallace as enrolled members

of the Tribe,' these individuals, 'provided that they are at least eighteen years of age,' also

'possess the right to participate in the initial organization of the Tribe'; (4) Yakima and

Burley were to 'consider what enrollment criteria should be applied to further prospective

7 As we previously explained in our 2010 Opinion, an Indian tribe may organize
itself under the procedures provided for in the Indian Reorganization Act of 1934 (25
U.S.C. § 461 et seq. (IRA)) with the assistance of the federal government.

8
members'; and (5) the BIA recommended, 'given the size of the Tribe,' that the Tribe

'operate as a General Council, which could elect or appoint a chairperson and conduct

business.' " (Id. at pp. 90-91.)

"To that end, the BIA drafted Resolution # GC-98-01, which Yakima and Burley

executed on November 5, 1998[,]" and which "states that the 'membership of the Tribe

currently consists of at least the following individuals: [Yakima], Burley, Rashel,

Anjelica, and Tristian; this membership may change in the future consistent with the

Tribe's ratified constitution and any duly enacted Tribal membership statutes.' . . . It

further states that Yakima, Burley, and Rashel, 'as a majority of the adult members of the

Tribe, hereby establish a General Council to serve as the governing body of the Tribe.' "

(Jewell, supra, 5 F.Supp.3d at p. 91, citations omitted.) "Rashel Reznor did not sign the

Resolution. . . . In addition, the Resolution acknowledges that Melvin Dixie is a

surviving heir to the Rancheria, but his whereabouts are 'unknown.' " (Id. at p. 91, fn. 6,

citations omitted.)

"The next correspondence that the BIA received from the Tribe is a letter

submitted by Burley dated April 20, 1999. . . . The letter is titled 'Formal notice of

resignation' and states that Yakima 'resign[ed] as Chairperson of the Sheep Ranch Tribe.'

Yakima claims that Burley forged his signature on the April 20, 1999 letter. . . . The very

next day, on April 21, the BIA received a letter from Yakima in which he states 'I cannot

and will not resign as chairman of the Sheep Ranch Indian Rancheria.' . . . However, the

letter further states that Yakima 'give[s] [Burley] the right to act as a delegate to represent

9
the Sheepranch Indian Rancheria.' " (Jewell, supra, 5 F.Supp.3d at p. 91, citations

omitted.)8

"On July 20, 1999, BIA and the Tribe entered into a 'self-determination contract'

that provided annual funding for the development and organization of the Tribe for the

benefit of future tribal members." (Jewell, supra, 5 F.Supp.3d at p. 91.) These federal

funds are provided under the Indian Self-Determination and Education Assistance Act

(Pub.L. No. 93-638, § 2 (Jan. 4, 1975) 88 Stat. 2230; see also 25 U.S.C. § 450). As in

our previous opinions, we will refer to the BIA's provision of these federal funds under a

contract with an Indian tribe as "ISDEAA benefits."

"Shortly thereafter, the leadership dispute that had been brewing between Yakima

and Burley came to a head. Over the course of the next couple of years, both Yakima and

Burley laid claim to the role of 'Chairperson' of the Tribe and attempted to organize the

Tribe pursuant to the IRA by submitting multiple competing constitutions that

purportedly had been adopted by the tribal membership." (Jewell, supra, 5 F.Supp.3d at

p. 92.)

Between 1999 and 2005, Yakima and Burley continued to argue over tribal

governance and membership — including a lawsuit and an administrative appeal filed by

8 In this appeal, the Tribe focuses on the issue of Yakima's resignation as
chairperson in 1999, pointing to portions of Yakima's deposition in this case, during
which Yakima stated that he resigned as tribal chairperson and that he signed a document
setting forth his resignation. The Tribe argues that Yakima's deposition testimony is
important new evidence that was not before the court in Jewell, establishing the
Commission's duty to release the RSTF funds to Burley regardless of the ongoing federal
proceedings involving the Tribe.
10
Yakima — but the BIA still provided ISDEAA benefits to the Tribe. (Jewell, supra, 5

F.Supp.3d at pp. 92-93.) Starting in 2000, the BIA indicated that if the Tribe did not

internally resolve its leadership and membership dispute, the BIA would suspend the

government-to-government relationship between the Tribe and the United States because

of concerns about the lack of a duly constituted government. (Ibid.)

In 2004, the BIA rejected an alleged new tribal constitution submitted by Burley

because "it did not appear that Burley had made any effort to include the whole tribal

community" in the process. (Jewell, supra, 5 F.Supp.3d at p. 93.)

In a February 2005 letter, the BIA stated that "it did not recognize Burley as the

tribal Chairperson, but rather, a 'person of authority' within the Tribe" and that " '[u]ntil

such time as the Tribe has organized, the Federal government can recognize no one,

including [Yakima], as the tribal Chairman.' . . . The BIA concluded by stating that it

'does not recognize any tribal government' for the Tribe '[i]n light of the BIA's [2004

Decision] that the Tribe is not an organized tribe.' " (Jewell, supra, 5 F.Supp.3d at

pp. 93-94, citations omitted.) In July 2005, the BIA suspended the Tribe's contract for

ISDEAA benefits. (Jewell, at p. 94.)

"On April 12, 2005, Burley, allegedly on behalf of the Tribe, filed suit in federal

court in the District of Columbia, claiming that the BIA was interfering in the Tribe's

internal affairs based on the BIA's refusal to recognize the Tribe as organized under the

IRA." (Jewell, supra, 5 F.Supp.3d at p. 94, citing California Valley Miwok Tribe v.

United States (D.D.C. 2006) 424 F.Supp.2d 197 (California Valley Miwok I).) The BIA

"defended its refusal to recognize the Tribe as an organized tribe on the ground that the

11
Tribe had failed to take necessary steps to protect the interests of its potential members."

(Jewell, at p. 94.) "The district court agreed with BIA and dismissed the complaint for

failure to state a claim." (Ibid., citing California Valley Miwok I, supra, 424 F.Supp.2d at

p. 203.) Burley appealed to the United States Court of Appeals for the District of

Columbia Circuit (hereafter D.C. Circuit), which affirmed the district court's decision.

(California Valley Miwok Tribe v. United States (D.C. Cir. 2008) 515 F.3d 1262

(California Valley Miwok II).) The D.C. Circuit stated that the BIA has "the power to

reject a proposed constitution that does not enjoy sufficient support from a tribe's

membership" and noted that even though the Tribe "has a potential membership of 250,

only Burley and her small group of supporters had a hand in adopting her proposed

constitution." (Id. at p. 1267.) The D.C. Circuit took the view that Burley's

"antimajoritarian gambit deserves no stamp of approval from the Secretary." (Id. at

pp. 1267-1268.)

Meanwhile, the BIA concluded by November 2006 that " 'the ongoing leadership

dispute [was] at an impasse and the likelihood of th[e] impasse changing soon [is]

remote.' " (Jewell, supra, 5 F.Supp.3d at p. 94.) "Accordingly, the BIA, in a

November 6, 2006 decision (hereinafter, the 'November 2006 Decision'), resolved to

'publish a notice of a general council meeting of the Tribe to be sponsored by the BIA in

the newspapers within the Miwok region.' . . . The purpose of the notice was to 'initiate

the reorganization process' by inviting 'the members of the Tribe and potential members

to the meeting' to discuss 'the issues and needs confronting the Tribe.' " (Ibid., citations

omitted.)

12
 Between 2006 and 2010, Burley initiated a series of administrative appeals of the

November 2006 Decision at different levels of the BIA. (Jewell, supra, 5 F.Supp.3d at

pp. 94-95.) The last and highest ranking official to consider Burley's administrative

appeal was the Assistant Secretary – Indian Affairs for the United States Department of

the Interior (the Assistant Secretary.) In a December 2010 decision, the Assistant

Secretary concluded that "there is no need for the BIA to continue its previous efforts to

organize the Tribe's government, because it is organized as a General Council," and

"there is no need for the BIA to continue its previous efforts to ensure that the Tribe

confers tribal citizenship upon other individual Miwok Indians in the surrounding area"

(the December 2010 Decision). In the December 2010 Decision, the Assistant Secretary

rescinded the BIA's previous statements refusing to recognize a government for the Tribe

and refusing to recognize Burley as the tribal chairperson. The Assistant Secretary

indicated that the BIA would work with the Tribe's existing governing body to "fulfill" a

government-to-government relationship.

In January 2011, on behalf of the "California Valley Miwok Tribe" and its tribal

council, Yakima, along with Velma WhiteBear, Antonia Lopez, Antone Azevedo,

Michael Mendibles and Evelyn Wilson, all of whom claim to be members or tribal

council members of the tribe as led by Yakima (hereinafter, "the Yakima faction") filed a

lawsuit in federal district court for the District of Columbia, challenging the Assistant

Secretary's December 2010 Decision. (California Valley Miwok Tribe v. Jewell (D.D.C.)

13
11-CV-00160 (BJR).)9 Burley intervened in the litigation. (Jewell, supra, 5 F.Supp.3d

at p. 88.)

In April 2011, after the federal lawsuit was already pending, the Assistant

Secretary withdrew the December 2010 Decision, and on August 31, 2011, he issued a

revised decision (the August 2011 Decision).10 As Jewell describes, "The August 2011

Decision reached the following conclusions: (1) the Tribe is a federally recognized tribe;

(2) the BIA cannot force the Tribe to organize under the IRA and will cease all efforts to

do so absent a request from the Tribe; (3) the BIA cannot compel the Tribe to expand its

membership and will cease all efforts to do so absent a request from the Tribe; (4) as of

the date of the Decision, the Tribe's entire citizenship consists solely of Yakima, Burley,

Burley's two daughters, and Burley's granddaughter; and (5) the November 1998

Resolution established a General Council comprised of all of the adult citizens of the

Tribe, with whom BIA may conduct government-to-government relations." (Jewell,

supra, 5 F.Supp.3d at p. 95.) The August 2011 Decision states, "This decision is final for

9 A declaration filed in this action by WhiteBear describes the competing tribal
government and membership recognized by the Yakima faction. According to
WhiteBear, the "Tribe currently has over 200 adult members plus their children"; the
"Tribe is governed by a Tribal Council, which currently consists of seven Council
members"; and this competing tribal council to the one established by Burley "has met
each month since 2003 to conduct Tribal business, enact resolutions, and perform other
governmental functions."

10 In connection with its motion for a new trial, the Tribe presented evidence that
during the period before the December 2010 Decision was withdrawn, the BIA started the
process of entering into a contract to provide ISDEAA benefits to the Tribe as
represented by Burley.

14
the Department [of the Interior] and effective immediately, but implementation shall be

stayed pending resolution of the litigation[,]" filed by the Yakima faction in federal

district court.

The Yakima faction filed an amended complaint in federal district court to

challenge the Assistant Secretary's August 2011 Decision, and the parties filed cross-

motions for summary judgment. (Jewell, supra, 5 F.Supp.3d at p. 88.)

The federal district court ruled on the summary judgment motions, granting the

motion filed by the Yakima faction, as reflected in the Jewell decision. Jewell held that

"the Assistant Secretary erred when he assumed that the Tribe's membership is limited to

five individuals and further assumed that the Tribe is governed by a duly constituted

tribal council." (Jewell, supra, 5 F.Supp.3d at p. 88.) As Jewell explained, "the Assistant

Secretary's conclusion that the citizenship of the Tribe consists solely of Yakima, Burley,

Burley's two daughters, and Burley's granddaughter is unreasonable in light of the

administrative record," as "the record is replete with evidence that the Tribe's

membership is potentially significantly larger than just these five individuals." (Id. at

p. 98.) Further, Jewell stated that there were "numerous factual allegations in the

administrative record that raise significant doubts about the legitimacy of the [Tribe's]

General Council" (id. at p. 100) and faulted the Assistant Secretary for "simply

assum[ing], without addressing, the validity of the General Council." (Id. at p. 99.)

Observing that "when the federal government engages in government-to-government

relations with a tribe, it must ensure that it is dealing with a duly constituted government

that represents the tribe as a whole" (id. at p. 97), Jewell concluded that the Assistant

15
Secretary had not carried out this obligation, and it accordingly remanded the matter to

the Assistant Secretary to reconsider whether tribal membership had been properly

limited to five persons and whether the Tribe's general council was a legitimate

governing body. (Id. at pp. 99-100.)

Burley appealed Jewell to the D.C. Circuit, but then voluntarily dismissed the

appeal in March 2014 after the United States Department of Justice took the position that

the district court decision was not final for the purposes of appeal, as the disposition

remanded the matter to the Assistant Secretary for reconsideration. As we understand the

current status, the matter is now before the Assistant Secretary for reconsideration as

directed by Jewell.

C. The Tribe's Lawsuit Against the Commission

The Tribe, as represented by Burley, filed this action against the Commission in

January 2008. Against the Commission, the operative complaint seeks (1) a writ of

mandate under Code of Civil Procedure section 1085; (2) an injunction; and

(3) declaratory relief. All three causes of action seek the same fundamental relief,

namely an order requiring the Commission to pay over the RSTF funds to the Tribe, with

Burley as its leader, to distribute according to her discretion. Specifically, all three

causes of action present the common issue of whether, in carrying out its duty as a trustee

of the RSTF, the Commission is legally justified in maintaining a policy of withholding

the RSTF funds from the Tribe until the federal government establishes a government-to-

government relationship with a tribal leadership body for the purpose of entering into a

contract for ISDEAA benefits.

16
 On December 17, 2010, the trial court granted the Yakima faction's motion for

leave to intervene in this action.

The recent procedural history of this action has been influenced by developments

in the federal proceedings. As relevant here, after the Assistant Secretary issued the

December 2010 Decision, recognizing Burley as the tribal chairperson, the trial court

(1) granted judgment on the pleadings in favor of the Tribe in March 2011, and

(2) reconsidered and denied the Yakima faction's motion to intervene. However, when

the Assistant Secretary set aside the December 2010 Decision, the trial court stayed its

order granting judgment on the pleadings and its order reconsidering and denying the

Yakima faction's motion to intervene. Later, after the Assistant Secretary issued the

August 2011 Decision, the trial court denied a renewed motion for judgment on the

pleadings filed by the Tribe and stayed all future proceedings on the merits, pending the

resolution of the federal proceedings.

The Tribe filed a petition for a writ of mandamus, challenging the trial court's stay

of proceedings, which we ruled upon in our 2012 Opinion, directing the trial court to lift

the stay, allow the parties to file dispositive motions and, if necessary, proceed to trial.

We explained that the pendency of the federal proceedings did not prevent the trial court

from adjudicating this action, as the relief sought by the Tribe's complaint was a ruling

determining whether the Commission had a duty to pay over the RSTF funds to the Tribe

under the present circumstances, including the fact that the federal proceedings involving

the Tribe's leadership and membership dispute were still ongoing.

17
 After the stay was lifted in this action, three dispositive motions were filed:

(1) the Tribe's motion for judgment on the pleadings; (2) the Commission's motion for

summary judgment; and (3) the Yakima faction's motion for summary judgment.11

The trial court granted the Commission's motion for summary judgment. The trial

court determined that "the Commission cannot reasonably be deemed to discharge its

responsibility to make a[n] RSTF distribution to a tribe by making the payment to a

person or group other than the one properly authorized to receive and administer the

payment pursuant to a tribe's directives," and further that "[g]iven the BIA's authority

with respect to the validity of tribal representatives, it is reasonable for the Commission

to rely on the BIA for a determination of the authorized representative of a tribe for

purposes of distribution of RSTF funds." As the trial court explained, "Since the BIA . . .

has suspended its [ISDEEA benefit] payments to the . . . Tribe based on a leadership

dispute, the court finds the Commission's suspension of disbursement of . . . RSTF

payments, pending the BIA's resumption of [ISDEEA benefit] funding or other BIA

action recognizing the authorized representative of the . . . Tribe, is justified."

The trial court also denied the Tribe's motion for judgment on the pleadings,

incorporating its reasoning set forth in its ruling on the Commission's motion for

11 The Tribe also filed a motion seeking a reinstatement of the trial court's March 11,
2011 order reconsidering and denying the Yakima faction's motion to intervene. The
Tribe acknowledged that the trial court had stayed its ruling reconsidering and denying
the Yakima faction's motion to intervene after the Assistant Secretary withdrew his
December 2010 Decision, but it argued — among other things — that our 2012 Opinion
had the effect of lifting the stay on that order.

18
summary judgment. The trial court did not rule on the Yakima faction's motion for

summary judgment, concluding that it was moot in light of its ruling granting summary

judgment in favor of the Commission.12

The Tribe then filed a motion for a new trial, which the trial court denied. The

Tribe appeals from the judgment.13

12 The trial court also denied the Tribe's motion seeking reinstatement of the order
denying the Yakima faction's motion to intervene on the ground that the motion was
moot in light of the summary judgment in favor of the Commission. On appeal, the Tribe
continues to advance the argument that the trial court's March 11, 2011 denial of the
Yakima faction's motion to intervene is currently in force because it was not appealed,
binding the Yakima faction to the trial court's statement in that order observing that the
BIA had recognized Burley as an authorized tribal representative. Based on the premise
that the March 11, 2011 order is still effective as to the Yakima faction, the Tribe argues
that the Commission should not be concerned about releasing the RSTF funds to the
Tribe with Burley as the authorized tribal representative, because the Yakima faction will
be barred from challenging the proposition that the BIA recognizes Burley as an
authorized tribal representative.
Without even addressing the other flaws in the Tribe's argument, we reject it
because its fundamental premise fails. Regardless of whether the Yakima faction
appealed the trial court's March 11, 2011 order, that order is no longer effective because
the trial court stayed it and reinstated the Yakima faction as fully participating parties
after the Assistant Secretary withdrew the December 2010 Decision. Further, contrary to
the Tribe's contention, our 2012 Opinion said nothing about lifting the trial court's stay on
the March 11, 2011 order. We lifted only the trial court's stay of future proceedings on
the merits, not the trial court's stay of its prior orders.

13 Both the Commission and the Yakima faction have filed respondent's briefs in this
action. The Yakima faction has also filed a motion requesting that we strike or disregard
portions of the Tribe's reply brief. The Yakima faction correctly points out that (1) a
large portion of the Tribe's reply brief discusses issues that were not raised in the opening
brief, and (2) the reply brief cites numerous documents that were not submitted to the
trial court in connection with the Commission's summary judgment motion, but that those
documents appear in the clerk's transcript because they were submitted in connection
with earlier motion practice in the trial court. In response to the Yakima faction's motion
to strike, we will not strike any portion of the reply brief, but we will disregard any
arguments raised for the first time in the reply brief and any documents discussed in the
19
 II

DISCUSSION

A. Standard of Review

The Tribe's appeal challenges the trial court's ruling granting the Commission's

motion for summary judgment.14 Code of Civil Procedure section 437c, subdivision (c)

provides that summary judgment is to be granted when there is no triable issue of

material fact and the moving party is entitled to judgment as a matter of law.15

reply brief that were not submitted in connection with the Commission's summary
judgment motion. (Hawran v. Hixson (2012) 209 Cal.App.4th 256, 268 [instead of
striking portion of a reply brief, the court "g[a]ve effect to defendants' motion [to strike
improper portion of the reply brief] by disregarding issues or contentions raised for the
first time in [the party's] reply brief"]; Szadolci v. Hollywood Park Operating Co. (1993)
14 Cal.App.4th 16, 19 [in reviewing ruling on summary judgment, the "appellate court
must examine only papers before the trial court when it considered the motion"].)

14 Although the Tribe states in its appellate brief that it is also challenging the trial
court's rulings denying the Tribe's motion for a new trial and denying the Tribe's motion
for judgment on the pleadings, the Tribe presents no substantive argument concerning
those motions other than to incorporate its arguments challenging the ruling on the
Commission's motion for summary judgment. We therefore treat those points as waived
and do not address them. (See Cahill v. San Diego Gas & Electric Co. (2011) 194
Cal.App.4th 939, 956 [" ' "When an appellant fails to raise a point, or asserts it but fails to
support it with reasoned argument and citations to authority, we treat the point as
waived." ' "].)

15 A defendant "moving for summary judgment bears an initial burden of production
to make a prima facie showing of the nonexistence of any triable issue of material fact."
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) A defendant
may meet this burden either by showing that one or more elements of a cause of action
cannot be established or by showing that there is a complete defense. (Ibid.)
If the defendant's prima facie case is met, the burden shifts to the plaintiff to show
the existence of a triable issue of material fact with respect to that cause of action or
defense. (Aguilar, supra, 25 Cal.4th at p. 849; Silva v. Lucky Stores, Inc. (1998) 65
Cal.App.4th 256, 261.) Ultimately, the moving party "bears the burden of persuasion that
20
 We review a summary judgment ruling de novo to determine whether there is a

triable issue as to any material fact and whether the moving party is entitled to judgment

as a matter of law. (Certain Underwriters at Lloyd's of London v. Superior Court (2001)

24 Cal.4th 945, 972.) "In practical effect, we assume the role of a trial court and apply

the same rules and standards which govern a trial court's determination of a motion for

summary judgment." (Lenane v. Continental Maritime of San Diego, Inc. (1998) 61

Cal.App.4th 1073, 1079.)

B. Summary Judgment Was Warranted in Favor of the Commission

As we have explained, the fundamental issue for resolution posed by all three of

the operative complaint's causes of action is whether, based on a dispute about the

leadership and membership of the Tribe, the Commission is legally justified in holding

the RSTF funds in trust for the Tribe until the federal government recognizes a tribal

leader with which to conduct government-to-government relations for the purpose of

entering into a contract for ISDEAA benefits.

For the sake of analyzing whether the Commission has established that it is

entitled to summary judgment in its favor, that single question breaks down into three

separate issues: (1) as a factual matter, does a leadership and membership dispute

presently exist within the Tribe; (2) if so, is the Commission legally justified in

withholding the payment of RSTF funds to the Tribe because of that dispute; and (3) is it

reasonable under the circumstances for the Commission, as trustee of the RSTF funds, to

there is no triable issue of material fact and that he is entitled to judgment as a matter of
law." (Aguilar, at p. 850.)

21
take the position that it will resume distribution of RSTF funds to the Tribe when the

federal government resumes contracting with the Tribe for ISDEAA benefits.

The trial court arrived at an affirmative answer to each of these three questions and

accordingly determined that the Commission was entitled to summary judgment because

under the undisputed facts there is no merit to the Tribe's claim that it is entitled to have

the Commission release the RSTF funds to Burley as the tribal representative at this time.

Although the Tribe's appellate briefing is at times disorganized, most of the

arguments that the Tribe raises in its appeal fall under one of the three issues we have

identified above. We examine each issue in turn, addressing the Tribe's arguments as we

proceed.

1. A Tribal Leadership and Membership Dispute Currently Exists, Calling
into Question Burley's Authority as a Legitimate Tribal Representative

Although the Tribe attempts to convince us otherwise, the undisputed facts in the

record establish that the Tribe is currently in the middle of a serious dispute over its

leadership and membership. As our recitation of the tribal history set forth in Jewell

demonstrates, the leadership and membership of the Tribe has been the subject of an

internal tribal dispute since 1999 when Yakima wrote letters to the BIA stating that he

would not resign as tribal chairman, alleging fraud and misconduct by Burley, and

questioning whether he could exclude Burley and her family members from the Tribe.

(Jewell, supra, 5 F.Supp.3d at pp. 91-92.)

Over the next 15 years, federal court decisions acknowledged the serious nature of

the dispute and underscored the legitimacy of the Yakima faction's argument that Burley

22
might not be a proper tribal representative and that the tribal membership may be much

larger than the five people claimed by Burley. For example, in 2008 the D.C. Circuit

acknowledged the "ongoing leadership dispute between Burley and former tribal

chairman Yakima Dixie" in which "[b]oth claim to represent the tribe . . ." (California

Valley Miwok II, supra, 515 F.3d at p. 1263, fn. 1) and noted that although the Tribe "has

a potential membership of 250" in an "antimajoritarian gambit," only "Burley and her

small group of supporters had a hand in adopting her proposed constitution." (Id. at

p. 1267). Most recently, in Jewell, the court stated that the factual record "is replete with

evidence that the Tribe's membership is potentially significantly larger" and "raise[s]

significant doubts about the legitimacy of the General Council." (Jewell, supra, 5

F.Supp.3d at pp. 98, 100.)

The dispute remains as active as ever, with the Yakima faction continuing to take

an active role in the federal proceedings concerning the Tribe's leadership and

membership as the plaintiff in the Jewell litigation. Further, the Yakima faction

continues to actively participate in this case as an intervenor by filing its own summary

judgment motion and filing an appellate brief in opposition to the Tribe's appeal, always

taking a position challenging Burley's claim to be the legitimate tribal leader.

Despite strong evidence of a very active tribal dispute, the Tribe's appellate

briefing argues that the Commission should be required to release the RSTF funds to

Burley because there is no longer a serious dispute as to the legitimacy of Burley's

leadership of the Tribe, based either on statements made by Yakima or on the actions of

the BIA. As we will explain, neither contention has merit.

23
 In support of its argument that there is no longer a dispute, the Tribe relies heavily

on statements that Yakima made in a deposition in this action in 2012. During that

deposition, Yakima testified that he signed a document in April 1999 resigning as tribal

chairperson. The Tribe states that Yakima's deposition testimony is the same as if

Yakima "simply gave up his false leadership dispute claim." According to the Tribe,

Yakima's deposition testimony confirms that Burley is the person with authority to

receive the RSTF funds. We reject the Tribe's argument.

Yakima's statement during his 2012 deposition, admitting that he signed a

document in 1999 resigning as tribal chairperson, does not establish that the dispute over

the Tribe's membership and leadership has been resolved. All of the evidence shows that

ever since Yakima made the statement in 2012, the Yakima faction continues to be an

active participant in the federal proceedings as well as in this case. Further, the issues

surrounding the Tribe's leadership and membership dispute go far beyond the question of

whether Yakima signed a document resigning as chairperson of the Tribe in 1999. As

Jewell explains, the tribal membership may be much larger than five persons, and thus

any representative elected only by a small subset of the potential tribal members may not

be a legitimate leader. The resolution of that issue has little to do with whether Yakima

voluntarily resigned as leader in 1999.16

16 Further, as the Tribe recognizes, the impact of Yakima's deposition testimony has
not yet been considered in the federal proceedings. The Tribe contends that if the BIA or
the federal court considers Yakima's deposition testimony, the federal proceedings will
conclude in favor of Burley. According to the Tribe, "once the matter is remanded and
the administrative record is supplemented to include [Yakima's] sworn deposition
24
 Next, the Tribe cites a variety of documents that purportedly establish that the BIA

has resolved the leadership dispute in Burley's favor and has recognized Burley's

authority as a tribal representative.

The first of these documents is a letter from the Assistant Secretary, dated

November 28, 2011, addressing Burley as "Chairwoman" of the Tribe and inviting

comment on proposed federal leasing regulations.17 As we read this letter, it does not

prove that the BIA currently considers the Tribe's leadership and membership dispute to

be resolved. The content of the letter has nothing to do with tribal leadership issues.

Moreover, it was addressed to Burley at a time when the Assistant Secretary had already

issued the August 2011 Decision, in which he recognized Burley's government but stayed

the implementation of the decision, and thus may simply represent the views expressed in

the August 2011 Decision. Since that time, Jewell disapproved of the Assistant

Secretary's August 2011 Decision and ordered that it be reconsidered. Thus, the

Assistant Secretary's act of addressing Burley as "Chairwoman" of the Tribe in

testimony . . . , upon reconsideration, the ASI will likely affirm his conclusion that the
Tribe is validly governed by the Tribal Council." (Italics added.) In its reply brief, the
Tribe also argues that as proceedings before the Assistant Secretary continue, another
new document will be put forth, which will purportedly resolve another issue that caused
concern to the court in Jewell, i.e., the absence of Reznor's signature on the 1998
resolution forming the Tribe's general council. The Tribe's argument about the ultimate
impact that these evidentiary items will have in the federal proceedings is wholly
speculative and underscores the fact that the dispute over the Tribe's leadership and
membership is still very much active and unresolved.

17 This document was submitted in connection with the Tribe's motion for a new
trial.

25
November 2011 does not establish that the BIA currently views the Tribe's leadership and

membership dispute to be resolved.18

The second document cited by the Tribe is a letter sent by the BIA on January 12,

2011, from Troy Burdick, the Superintendent of the BIA's Central California Agency,

stating that in light of the Assistant Secretary's December 2010 Decision, the agency was

"committed to working with the Tribe's existing governing body . . . to fulfill the

government-to-government relationship between the United States and the [Tribe],

consistent with the [Assistant Secretary's] direction." The Tribe contends that the BIA's

recognition of Burley's government in Burdick's January 12, 2011 letter has never been

rescinded or revoked, establishing the BIA still recognizes Burley as the legitimate leader

of the Tribe. The argument has no merit.

The record is clear that in April 2011, the Assistant Secretary expressly "set aside"

the December 2010 Decision, and in doing so, removed the basis for the BIA's

recognition of Burley's government in the January 12, 2011 letter. Further, to the extent

any doubt existed as to whether the BIA currently recognizes Burley's leadership for the

purpose of establishing a government-to-government relationship after the Assistant

Secretary issued the August 2011 Decision, Jewell removed all doubt, as it concluded

18 The Tribe also relies on a December 2013 handwritten note to Burley from the
current Assistant Secretary, addressing her as "Chairwoman" and thanking her for
participating in the White House Tribal Nations Conference. We have denied the Tribe's
request to take judicial notice of that document.

26
that the Assistant Secretary erred in concluding that Burley's tribal government is

legitimate.

In connection with its reliance on Burdick's January 12, 2011 letter, the Tribe

repeatedly cites Timbisha Shoshone Tribe v. Salazar (D.C. Cir 2012) 678 F.3d 935, 937-

938. In Timbisha, the court deferred to the BIA's recognition of a tribal government

following a tribal election held to resolve a long-running tribal leadership dispute and

held that a competing faction did not have standing to file suit on behalf of the tribe.

(Ibid.) The Tribe argues that, similar to Timbisha, the BIA recognized Burley in the

December 2010 Decision and the January 12, 2011 letter, and thus, in accordance with

Timbisha, the Commission should follow the BIA's lead and recognize Burley's

government. However, Timbisha is inapposite because, as we have explained, the tribal

leadership dispute has not been resolved in this case and the BIA does not currently

recognize a tribal government. The BIA briefly recognized Burley's government in the

December 2010 Decision, but that decision is no longer effective because of subsequent

events, including the Assistant Secretary's withdrawal of that decision and the federal

court's remand of the matter in Jewell.19

19 Although not warranting extensive discussion, we also point out that the Tribe
attempts to parse the language of the Assistant Secretary's August 2011 Decision to argue
that Burley is currently the legitimate tribal leader recognized by the BIA. Among other
things, the Tribe argues that even though the Assistant Secretary stayed implementation
of the August 2011 Decision, he meant the decision to have the present effect of
recognizing Burley's government. This argument, and others like it based on the
language of the August 2011 Decision, are foreclosed by Jewell, which disapproved the
August 2011 Decision and remanded it for reconsideration by the Assistant Secretary.

27
 Next, the Tribe argues that by continuing to publish the name of the Tribe in the

Federal Register under the list of recognized Indian tribes, the BIA is indicating that it

recognizes the legitimacy of Burley's tribal government. For this argument, the Tribe

relies on the statement preceding the list that the "listed Indian entities are acknowledged

to have the immunities and privileges available to federally recognized Indian tribes by

virtue of their government-to-government relationship with the United States." The Tribe

contends that if a government-to-government relationship exists with the federal

government, "[t]he tribal government referred to in these official statements can only

mean the Tribal Council identified in the ASI's August 31, 2011 decision headed by the

Burley Faction." We disagree.

The Tribe has presented no evidence that merely by listing the name of the Tribe

in the Federal Register, the BIA is recognizing the legitimacy of the tribal government

that Burley claims to lead. Indeed, all of the evidence supports the opposite inference.

As Jewell establishes, the BIA refused for a number of years to recognize Burley's

government or to establish any government-to-government relationship with the Tribe as

led by Burley. (Jewell, supra, 5 F.Supp.3d at pp. 94-95.) The list of recognized tribes is

published annually in the Federal Register (25 U.S.C. § 479a-1(a)), and it is undisputed

that the Tribe was consistently listed in each version of the Federal Register during that

period. Based on these facts, there is no correlation between the appearance of the

Tribe's name in the Federal Register and the BIA's recognition of a specific tribal

government.

28
 Finally, the Tribe relies on the fact that the BIA continues to recognize a tribal

name change made in 2001 when Burley was the tribal chairperson, changing the name

of the Tribe from the "Sheep Ranch Rancheria of Me-Wuk Indians of California" to the

"California Valley Miwok Tribe." The Tribe argues that if the BIA continued to dispute

the legitimacy of Burley's leadership, it would not continue to recognize the tribal name

change made when Burley was chairperson. We reject this argument. The name change

was made in 2001, during a period when the BIA still recognized Burley's government

and provided ISDEAA benefits to the Tribe. (Jewell, supra, 5 F.Supp.3d at pp. 92-93.)

The BIA did not withdraw recognition of Burley's government until 2005. (Id. at p. 93.)

In light of the evidence disclosing an ongoing leadership and membership dispute within

the Tribe as acknowledged and detailed in Jewell, it would be illogical to conclude that

the BIA considers that dispute resolved and currently recognizes the legitimacy of

Burley's leadership merely because it recognizes a tribal name change made in 2001

when it recognized Burley's government.

In sum, the Commission met its burden to establish that there is no triable issue of

material fact on the central factual issue presented in this case, i.e., whether the Tribe is

currently in the middle of an unresolved dispute over its leadership and membership.

2. The Commission Is Justified in Withholding RSTF Funds in Light of the
Tribal Membership and Leadership Dispute

Having determined that a current leadership and membership dispute within the

Tribe calls into question whether Burley is an authorized representative of a legitimate

tribal government, we turn to the next issue, which is purely a legal question.

29
Specifically, we consider whether, as a matter of law, the Commission may legally

refrain from distributing the RSTF funds to the Tribe in light of the current tribal

leadership and membership dispute.

We begin our analysis with the language of the controlling statute and the

Compacts. As we have explained, the Government Code establishes the basic duty of the

Commission with respect to the RSTF funds. Specifically, the Commission "shall make

quarterly payments from the Indian Gaming Revenue Sharing Trust Fund to each eligible

recipient Indian tribe within 45 days of the end of each fiscal quarter." (Gov. Code,

§ 12012.90, subd. (e)(2).) The Compacts further define the Commission's duties. "The

Commission shall serve as the trustee of the fund. The Commission shall have no

discretion with respect to the use or disbursement of the trust funds. Its sole authority

shall be to serve as a depository of the trust funds and to disburse them on a quarterly

basis to Non-Compact Tribes." (Compacts, § 4.3.2.1(b).)20

From these provisions, it is clear that the Commission has a very limited role with

respect to the RSTF funds. Specifically, the Commission, in its role as a trustee, is to

serve as a depository of the funds and disburse them on a quarterly basis. It is also clear,

however, that in order to disburse funds, the Commission must identify a tribal

representative to whom it can release the funds.

20 The Government Code incorporates the provisions of the Compacts that describe
the role of the Commission with respect to the RSTF funds, as the Government Code
states that the RSTF funds "shall be available to the [Commission] . . . for the purpose of
making distributions to noncompact tribes, in accordance with distribution plans
specified in tribal-state gaming compacts." (Gov. Code, § 12012.75.)

30
 In this case, the Commission is faced with an impossible situation in trying to

identify a tribal representative to whom the RSTF funds can be released. Burley claims

to be the authorized tribal representative pursuant to a tribal government created by five

tribal members. The Yakima faction opposes Burley's claim to be the authorized tribal

representative and has formed a rival tribal government, allegedly representing a much

larger population of tribal members. Both factions claim that their tribal council is the

sole legitimate tribal government, and that their leaders are the authorized tribal

representatives. Under these circumstances, it is impossible for the Commission to carry

out its role, as defined by statute and the Compacts, to distribute the RSTF funds to the

tribe known as the "California Valley Miwok Tribe."

The Compacts state that Commission "shall serve as the trustee" of the RSTF

funds. Therefore, the provisions of the Probate Code dealing with the duties of trustees

are applicable here in understanding the proper role of the Commission. (Prob. Code,

§ 15000 et seq.) Under the Probate Code, a trustee has the duty to "take reasonable steps

under the circumstances to take and keep control of and to preserve the trust property."

(Id., § 16006.) Further, consistent with that duty, the Probate Code recognizes the right

of a trustee to "[w]ithhold any portion of an otherwise required distribution that is

reasonably in dispute." (Id., § 16004.5, subd. (b)(4); see also Bellows v. Bellows (2011)

196 Cal.App.4th 505, 511 (Bellows) ["[Probate Code, section 16004.5,

s]ubdivision (b)(4) confirms the right of the trustee to withhold any distribution that is

31
reasonably in dispute."].)21 Indeed, "it is a fraud upon the beneficiary for a trustee to

transfer trust property to another without protection and in violation of the beneficiary's

right." (Dougherty v. California Kettleman Oil Royalties (1939) 13 Cal.2d 174; see also

Rest.2d, Trusts § 226 ["If by the terms of the trust it is the duty of the trustee to pay or

convey the trust property or any part thereof to a beneficiary, he is liable if he pays or

conveys to a person who is neither the beneficiary nor one to whom the beneficiary or the

court has authorized him to make such payment or conveyance."].)

Here, in light of the fact that two different tribal factions claim the right to receive

the RSTF funds and that dispute has been recognized and documented by both the BIA

and the federal courts, the distribution of the RSTF funds is "reasonably in dispute,"

giving the Commission the right to withhold those funds. (Prob. Code, § 16004.5, subd.

(b)(4).) Although the Compacts and the Government Code require that the Commission

make a distribution to the Non-Compact Tribes on a quarterly basis, the Commission also

has a duty as a trustee to "take reasonable steps under the circumstances to take and keep

21 When a dispute about distribution of trust funds arises, "[i]n such a case . . . , the
trustee may seek instructions from the court, the well-established method of resolving
controversies that may arise between trustee and beneficiary." (Bellows, supra, 196
Cal.App.4th at p. 511.) We note that the Commission properly attempted to follow this
approach when it filed an interpleader action in 2005 seeking a court order as to how it
should handle the distribution of the RSTF funds in light of the tribal leadership and
membership dispute. However, the court granted Burley's demurrer to the interpleader
action on the ground, among others, that it did not have jurisdiction to resolve the internal
tribal dispute. Unable to obtain court guidance on the RSTF funds, the Commission
adopted its current approach of withholding the funds until the tribal dispute is resolved.
Although this litigation was initiated by the Tribe, in ruling on the instant dispute we are
in effect affording the relief available under the Probate Code to provide instructions to a
trustee to resolve a dispute about the distribution of trust funds.

32
control of and to preserve the trust property." (Prob. Code, § 16006.) Under the

circumstances, the Commission's duty as a trustee takes precedence, allowing it to

withhold the RSTF funds from the Tribe until it can identify an authorized tribal

representative to receive the funds and it can assure itself that it is not distributing the

funds to the wrong person or group.

The Tribe argues that the Commission is not authorized to withhold the RSTF

funds because the Compacts state that the Commission "shall have no discretion with

respect to the use or disbursement of the trust funds." (Compacts, § 4.3.2.1(b).)

According to the Tribe, in deciding to withhold the RSTF funds from the Tribe instead of

distributing those funds, the Commission is improperly exercising discretion. We

disagree. Indeed, the opposite is true. Due to the leadership and membership dispute,

there is currently no individual the Commission can identify as the authorized tribal

representative to receive the RSTF funds. If the Commission were to choose between the

two competing tribal factions and determine for itself who has a meritorious claim to be

the legitimate tribal representative, the Commission would be impermissibly exercising

its discretion and would be overstepping, by far, its very circumscribed role. The

Commission has no authority, either under the Compacts or the Government Code, to

resolve intratribal disputes over membership and leadership.

3. The Commission Is Reasonably Withholding RSTF Funds from the Tribe
Until the BIA Resumes Contracting with the Tribe for ISDEAA Benefits

The Commission has taken the position that it "will disburse the accrued RSTF

payments to the [Tribe] once the BIA identifies the [Tribe's] authorized leadership as

33
evidence by the resumption of [ISDEAA benefits] contracting." The final issue presented

by the Commission's summary judgment motion is whether that position is reasonable.

As a trustee, the Commission is required to take a reasonable approach, under the

circumstances, in deciding whether the tribal leadership and membership dispute has

been resolved such that it may resume distribution of the RSTF funds. The

reasonableness standard is found in two of the applicable provisions of the Probate Code.

First, as we have explained, a trustee must "take reasonable steps under the

circumstances to take and keep control of and to preserve the trust property" (Prob. Code,

§ 16006, italics added). Second, a trustee has the right to "[w]ithhold any portion of an

otherwise required distribution that is reasonably in dispute." (Id., § 16004.5, subd.

(b)(4), italics added.) Based on these provisions, we examine whether it is reasonable,

under the circumstances, for the Commission to withhold the RSTF funds until the BIA

resumes contracting with the Tribe for ISDEAA benefits.22

22 The Tribe argues that the Commission is not entitled to any special deference in its
approach to the RSTF funds based on the general policy of giving deference to an
administrative agency's construction and interpretation of a statute it is charged with
administering. (Sheet Metal Workers' International Association, Local 104 v. Duncan
(2014) 229 Cal.App.4th. 192, 207 ["Although the ultimate responsibility for the
construction of a statute rests with the court, we accord great weight and respect to the
construction of the statute by the agency charged with administering the statute[,]" and
"[d]eference to an administrative agency's interpretation is situational and depends on a
complex of factors"].) We need not decide that issue, as even without affording any
special deference to the Commission's approach based on its role as a governmental
agency, we apply the reasonableness standard applicable to trustees in dealing with trust
funds.

34
 Here, the Commission may reasonably look to the status of the BIA's relationship

with the Tribe to understand whether the intratribal leadership and membership dispute

has been resolved and an authorized tribal representative has been identified. As Jewell

explains, the federal government has a unique role in determining the proper

representatives of a tribal government for purposes of engaging in a government-to-

government relationship with the tribe. Specifically, "the federal government has a

'distinctive obligation of trust' in its dealings with Indians." (Jewell, supra, 5 F.Supp.3d

at p. 97.) Thus, "when the federal government engages in government-to-government

relations with a tribe, it must ensure that it is dealing with a duly constituted government

that represents the tribe as a whole." (Ibid.) The BIA has a responsibility to "deal[] only

with a tribal government that actually represents the members of a tribe." (California

Valley Miwok I, supra, 424 F.Supp.2d at p. 201.)

The federal government's trust obligation toward Indian tribes features

prominently in the BIA's current dealings with the Tribe. Because of the impossibility of

identifying a duly constituted tribal government and authorized tribal representative, the

BIA suspended its contracting for ISDEAA benefits with the Tribe. (Jewell, supra, 5

F.Supp.3d at pp. 93-94.) The proceedings underway upon remand to the Assistant

Secretary center on whether the BIA will recognize a tribal government, which represents

the Tribe as a whole. Given the BIA's obligation to ensure that it is dealing with a tribe's

duly constituted government, if the BIA chooses to resume contracting for ISDEAA

benefits with the Tribe, the Commission will be justified in viewing that action by the

BIA as a decision that the Tribe has a duly constituted government and an authorized

35
tribal representative. The Commission has therefore taken a reasonable approach in

looking to the status of the BIA's relationship with the Tribe to determine when an

authorized tribal representative exists to receive the RSTF funds.

The Tribe argues that because ISDEAA benefits and RSTF funds are significantly

different, the Commission should not look to whether the BIA has resumed contracting

for ISDEAA benefits with the Tribe to decide whether an authorized tribal representative

exists to receive the RSTF funds. As the Tribe points out, the Commission is required to

distribute RSTF funds on a nondiscretionary basis to all Non-Compact Tribes, while, in

contrast, under the ISDEAA the BIA may refuse to award a contract for ISDEAA

benefits to a tribe for a variety of reasons. (25 U.S.C. § 450f(a)(2).)23

As the Commission acknowledges, there are many differences between the RSTF

funds and the ISDEAA benefits, and there are a variety of reasons that might cause the

BIA to refuse to provide ISDEAA benefits. However, the Commission clarifies that it

does not withhold RSTF funds from a tribe simply because that tribe is not awarded a

23 The BIA may refuse to award a contract for ISDEAA benefits based on "a specific
finding that clearly demonstrates that, or that is supported by a controlling legal authority
that-- [¶] (A) the service to be rendered to the Indian beneficiaries of the particular
program or function to be contracted will not be satisfactory; [¶] (B) adequate protection
of trust resources is not assured; [¶] (C) the proposed project or function to be
contracted for cannot be properly completed or maintained by the proposed contract; [¶]
(D) the amount of funds proposed under the contract is in excess of the applicable
funding level for the contract, . . . ; or [¶] (E) the program, function, service, or activity
(or portion thereof) that is the subject of the proposal is beyond the scope of programs,
functions, services, or activities covered under paragraph (1) because the proposal
includes activities that cannot lawfully be carried out by the contractor." (25 U.S.C.
§ 450f(a)(2).)

36
contract for ISDEAA benefits. Instead, in the unique situation here, the BIA's decision to

suspend ISDEAA benefits to the Tribe was because of a tribal membership and

leadership dispute that made it impossible for the BIA to enter into a government-to-

government relationship with a legitimate tribal government and authorized tribal

representative to contract for ISDEAA benefits. This is the same problem faced by the

Commission with respect to the RSTF funds, as it cannot identify an authorized tribal

representative to receive the funds.

Thus, although the BIA may refuse to provide ISDEAA benefits for a variety of

reasons, in this case the BIA's refusal was caused by uncertainty as to the Tribe's

authorized leadership. Therefore, the BIA's resumption of contracting for ISDEAA

benefits with the Tribe will establish that an authorized leader exists to receive funds on

behalf of the Tribe. At that point, the proper party to receive the distribution of the RSTF

funds will no longer be "reasonably in dispute" (Prob. Code, § 16004.5, subd. (b)(4)), and

the Commission will accordingly have a duty under the Compacts and the Government

Code to distribute the RSTF funds to the Tribe.

4. The Tribe's Remaining Arguments Lack Merit

Before concluding our analysis, we address two additional arguments that the

Tribe presents in its appeal.

a. There Is No Merit to the Argument That the Commission Should
Distribute the RSTF Funds to the Five Tribal Members Claimed by
Burley Based on a Purported Vested Right to Distribution

Although not a focus of its argument in the trial court, on appeal the Tribe

contends that regardless of the eventual outcome of the tribal membership and leadership

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dispute, the five tribal members that Burley claims to currently constitute the Tribe have

a vested interest in receiving the RSTF funds that accumulated while the tribal leadership

and membership dispute was pending.24 The Tribe argues that any future tribal members

are currently only potential members who have no right to RSTF funds accumulated

before they became tribal members. Based on this premise, the Tribe argues that the

Commission should be ordered to release the currently accumulated RSTF funds to the

five tribal members claimed by Burley to constitute the Tribe. As we will explain, we

reject this argument because it ignores the nature of the current tribal and membership

dispute as described in Jewell.

The Tribe's assumption that the current tribal membership is, without question,

limited to five persons is not supported by the record. One of the two items that Jewell

remanded to the Assistant Secretary is the issue of whether the Tribe's current

membership is properly limited to only five persons or, in contrast, whether the Tribe has

a current membership of over 200 as claimed by the Yakima faction. As Jewell

24 The Tribe argues that the right to receive the RSTF funds is "vested" in current
tribal members or the tribal members have "constructively received" the funds because
the Commission purportedly already "distributed" the RSTF funds to the Tribe by placing
those funds for the benefit of the Tribe in an interest-bearing account. There is no factual
support in the record for the claim that the Commission has "distributed" the RSTF funds.
Indeed, the Tribe filed this litigation because the Commission decided not to distribute
the RSTF funds to the Tribe, and instead to fulfill its duty as a trustee by withholding the
RSTF funds from the Tribe until it can identify an authorized tribal representative. The
most that can be said is that the Commission has set aside designated funds for the Tribe.
However, the Commission has consistently taken the position that it is unable to identify
any specific tribal members or any authorized tribal representative to whom those funds
should be distributed.

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explained, the Assistant Secretary was unreasonable to conclude that the Tribe's

membership is limited to five persons, as "the record is replete with evidence" of a

potentially much larger tribal membership. (Jewell, supra, 5 F.Supp.3d at p. 98.) Indeed

Jewell specifically rejected the same type of assertion that the Tribe makes in this case,

explaining that "a distinction between citizens and 'potential' citizens of the Tribe"

incorrectly "assumes that the five citizens . . . have the exclusive authority to determine

citizenship" and is a "circular argument." (Id. at p. 98, fn. 14.)

In addition, as we have pointed out, the Compacts establish that the Commission

"shall have no discretion with respect to the use or disbursement of the trust funds."

(Compacts, § 4.3.2.1(b), italics added.) Accordingly, it is not the role of the Commission,

nor of this court in ruling on the scope of the Commission's duty with respect to the

RSTF funds, to determine how the RSTF funds should be distributed within the Tribe

once the internal tribal dispute is resolved and the Commission identifies an authorized

tribal representative to receive the accumulated RSTF funds on behalf of the Tribe.

b. The Tribe Is Not Entitled to a Distribution of RSTF Funds Based on
the Assistant Secretary's Brief Recognition of Burley's Leadership
from December 2010 to April 2011

Next, the Tribe focuses on the brief period from December 22, 2010, to April 1,

2011, when the Assistant Secretary's December 2010 Decision was in effect and the BIA

was taking steps to implement it by starting the process of entering into a contract for

ISDEAA benefits with the Tribe as represented by Burley. According to the Tribe,

because Burley was recognized by the BIA for a short time as an authorized tribal

39
representative, the Commission should be required to distribute to Burley the RSTF funds

accumulated between 2005 and April 2011.25 We find no merit to this argument.

The Assistant Secretary's issuance and withdrawal of the December 2010 Decision

establishes nothing more than that there was a brief window during which it appeared that

the tribal membership and leadership dispute might have been resolved to the satisfaction

of the BIA. However, as subsequent events show, the December 2010 Decision did not

end up resolving the dispute, which is still very active and is once again before the

Assistant Secretary. Accordingly, the Commission properly continues to withhold the

25 The Tribe argues that Goodface v. Grassrope (8th Cir. 1983) 708 F.2d 335
establishes a rule that the last recognized leader of a tribe is to be dealt with pending
resolution of a dispute. According to the Tribe, as Burley was the last leader recognized
by the BIA — either until 2005 or in the December 2010 Decision — the Commission
should follow Goodface and deal with Burley for the purposes of distributing the RSTF
funds. We reject the Tribe's argument because Goodface does not establish the rule for
which the Tribe cites it. Goodface concerned a specific situation in which the BIA was
already dealing with an Indian tribe in a government-to-government relationship and
providing needed federal benefits to the reservation when a tribal election dispute arose
involving improprieties during the election process, calling into question whether the new
tribal council was the legitimate tribal government or whether the old tribal council
should stay in place until a new election could be called. (Id. at p. 337.) Goodface held
that the BIA erred by refusing to recognize either government because the BIA was
"obligated to recognize and deal with some tribal governing body" so that it did not
jeopardize the continuation of necessary day-to-day services on the reservation. (Id. at
p. 339.) Based on "equitable principles," Goodface concluded that the BIA should deal
with the tribal council that had been certified and sworn in after the tribal election. (Ibid.)
It is clear from Goodface's discussion that it did not purport to establish a rule applicable
to all situations. The decision was reached on pragmatic and equitable grounds. Here,
the situation is vastly different, with a wide-ranging dispute over the Tribe's membership
and leadership rather than an isolated dispute over election improprieties by a well-
established tribe with a long-standing relationship with the BIA. Under the present
circumstances, there are ample grounds for the Commission to withhold RSTF benefits
from the Tribe until the dispute is resolved.
40
RSTF funds because it cannot identify an undisputed authorized tribal representative to

receive the funds.

DISPOSITION

The judgment is affirmed.

IRION, J.

WE CONCUR:

NARES, Acting P. J.

MCINTYRE, J.

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