Tiffany Aguayo v. S.M.R. Jewell

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

TIFFANY L. AGUAYO, (HAYES); No. 14-56909
KAREN DURO, (RENIO); ROSA
ESTRADA; CHRISTIAN GRIFFITH; D.C. No.
JUSTIN GRIFFITH; NATASHA 3:13-cv-01435-
GRIFFITH; CAMERON C. HAYES; BAS-KSC
PAMELA KENNEDY; ELIZABETH
MARTINEZ; JACQUELINE
MCWHORTER; DAWN MOJADO; OPINION
PRISCILLA MOJADO; MICHAEL
PERALTA; JOHNNY POLING; JESSICA
RENTERIA; ADAM TRUJILLO;
ANDREA TRUJILLO; ANNALEE H.
TRUJILLO, (YANEZ); BRADLEY L.
TRUJILLO, JR.; BRANDON M.
TRUJILLO, SR.; BRIAN A. TRUJILLO,
II; CHARLES TRUJILLO; DONALD
TRUJILLO; JENNIFER TRUJILLO; JOHN
A. TRUJILLO; JONATHAN TRUJILLO;
JOSHUA E. TRUJILLO; KRISTINE
TRUJILLO; LAURA J. TRUJILLO;
LESLIE TRUJILLO; MARLENE
TRUJILLO; RANDOLPH W. TRUJILLO,
JR.; SHALAH M. TRUJILLO; TINA
TRUJILLO-POULIN; ANNETTE E.
WALSH; BRENDA J. WALSH; ERIC J.
WALSH; PATRICIA A. WALSH;
STEPHANIE S. WALSH; JUANITA
LUNA; LANISE LUNA; SHALEA LUNA;
ANTHONY LUNATRUJILLO; BRIAN
2 AGUAYO V. JEWELL

TRUJILLO, SR.; JACOB TRUJILLO;
MIRIAM TRUJILLO; RACHEL ELLIS-
TRUJILLO; REBEKAH TRUJILLO;
RICHARD TRUJILLO; MICHELLE
TRUJILLO; BRIANNA MENDOA;
ANGEL MORALES; DESTINY PENA;
MARI PENA; ROGELIO PENA;
GERONIMO POLING; KRISTA POLING;
KRISTOPHER POLING; CHEYENNE
TRUJILLO; PETER TRUJILLO, JR.;
BRANDON TRUJILLO, JR.; FEATHER
TRUJILLO; MUKIKMAL TRUJILLO;
TASHPA TRUJILLO; KAWISH
TRUJILLO; SUSANNE WALSH; JOSEPH
RAVAGO; KALEY RAVAGO,
Plaintiffs-Appellants,

v.

S.M.R. JEWELL, Secretary,
Department of the Interior; KEVIN K.
WASHBURN, Esquire, Assistant
Secretary, Department of the Interior
- Indian Affairs; AMY DUTSCHKE,
Regional Director, Department of
the Interior; ROBERT EBEN,
Superintendent of the Department of
Indian Affairs, Southern California
Agency; DOES, 1 THROUGH 10,
Defendants-Appellees.
 AGUAYO V. JEWELL 3

Appeal from the United States District Court
for the Southern District of California
Cynthia A. Bashant, District Judge, Presiding

Argued and Submitted February 5, 2016
Pasadena, California

Filed July 8, 2016

Before: STEPHEN REINHARDT, RICHARD A. PAEZ,
and MILAN D. SMITH, JR., Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

SUMMARY*

Indian Law

Affirming the district court’s summary judgment in favor
of the defendants, the panel held that the Bureau of Indian
Affairs did not act arbitrarily and capriciously when it
concluded that, according to tribal law, it had no authority to
intervene in a tribal membership dispute, in which more than
150 people were disenrolled from the Pala Band of Mission
Indians.

The panel held that it had jurisdiction to review the BIA’s
final agency action under the Administrative Procedures Act.

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 AGUAYO V. JEWELL

The panel held that the BIA was not arbitrary and
capricious in concluding that the Pala Band’s 1997
Constitution and 2009 enrollment ordinance supplanted the
Band’s Articles of Association and 1961 membership
ordinance. Accordingly, the BIA had only an advisory role
and could not compel the Band’s Executive Committee to re-
enroll the plaintiffs. The panel rejected plaintiffs’ argument
that the BIA had an independent trust duty to protect them
from unjust disenrollment.

COUNSEL

Tracy L. Emblem (argued), Escondido, California, for
Plaintiffs-Appellants.

John L. Smelter (argued), Reuben S. Schifman, and Katherine
J. Barton, Attorneys; John C. Cruden, Assistant Attorney
General; United States Department of Justice, Environment
& Natural Resources Division, Washington, D.C.; Barbara N.
Coen, Office of the Solicitor, United States Department of the
Interior, Washington, D.C., for Defendants-Appellees.
 AGUAYO V. JEWELL 5

OPINION

M. SMITH, Circuit Judge:

This appeal analyzes whether the Bureau of Indian Affairs
(BIA) acted arbitrarily and capriciously when it concluded
that, according to tribal law, it had no authority to intervene
in a tribal membership dispute, in which more than 150
people were disenrolled from the Pala Band of Mission
Indians (Pala Band or Band). We conclude that it did not, and
affirm the decision of the district court.

FACTS AND PROCEDURAL BACKGROUND

The Pala Band is a federally-recognized Indian tribe
located in northern San Diego County. The Secretary of the
Interior created the Pala Reservation in the late nineteenth
century, pursuant to the Mission Indian Relief Act of 1891.
See Escondido Mut. Water Co. v. Fed. Energy Regulatory
Comm’n, 692 F.2d 1223, 1225 (9th Cir. 1982), rev’d in part
on other grounds by Escondido Mut. Water Co. v. La Jolla
Band of Mission Indians, 466 U.S. 765 (1984).

In 1934, Congress passed the Indian Reorganization Act
(IRA). Indian Reorganization Act, ch. 576, 48 Stat. 984
(1934) (codified as amended at 25 U.S.C. §§ 461–479). The
IRA granted each Indian tribe “the right to organize for its
common welfare, and . . . adopt an appropriate constitution
and bylaws,” to be approved by the Secretary of the Interior.
25 U.S.C. § 476(a). By its terms, the IRA does not apply to
reservations “wherein a majority of the adult Indians, voting
at a special election duly called by the Secretary of the
Interior, shall vote against its application.” Id. § 478. The
Secretary of the Interior was directed to call such an election
6 AGUAYO V. JEWELL

“within one year after June 18, 1934.” Id. The Secretary
called such an election, and the Pala Band voted against
adopting the IRA on December 18, 1934. Theodore Haas, Ten
Years of Tribal Government Under I.R.A., 14 (U.S. Indian
Serv. 1947).

I. Articles of Association

Notwithstanding its decision to vote against the IRA in
1934, the Pala Band chose to organize its government. In
1960, it adopted Articles of Association as the Band’s
governing document. The Articles created an Executive
Committee, comprised of six elected officers, and a General
Council, which included all adult members of the tribe. The
Articles granted the General Council the power “[t]o enact
ordinances . . . governing future membership, loss of
membership and adoption of members into the Band.”

Shortly thereafter, the General Council enacted a
membership ordinance (the 1961 Ordinance), pursuant to the
authority granted to it in the Articles. Under the 1961
Ordinance, a person seeking membership in the Band would
apply to the Executive Committee, which would make a
report and recommendation to the Regional Director of the
BIA. If the Band recommended denying the application, the
applicant could appeal to the Regional Director, who would
then make a recommendation, and send a report to the
Commissioner of the BIA. If the Commissioner was satisfied
that the applicant met the enrollment criteria, he was to
“notify the appellant in writing and the Executive Committee
shall enter the applicant’s name on the membership roll.” In
other words, pursuant to the Articles of Association and the
1961 Ordinance, the Executive Committee made
 AGUAYO V. JEWELL 7

recommendations, but the BIA was granted ultimate authority
over whether an applicant was enrolled.

Plaintiffs are descendants of Margarita Britten
(Margarita), a Pala Indian who was born in 1856. Their
eligibility to be enrolled as members of the Pala Band
depends on whether Margarita was a full- or half-blooded
Pala Indian.1 Margarita was originally considered to be one-
half Pala Indian, and thus her great-great-grandchildren did
not have the minimum 1/16 blood quantum to be eligible for
membership in the Band.

The first eligibility dispute regarding Margarita’s
descendants proceeded pursuant to the 1961 Ordinance. In
1984, the General Council concluded that the evidence
suggesting that Margarita was actually a full-blooded Pala
Indian was more accurate, and voted to change her status
accordingly. The General Council’s recommendation was
sent to a BIA Regional Director, Tom Dowell, who
recommended against enrolling her descendants because there
was insufficient evidence to establish Margarita’s blood
quantum. Director Dowell’s decision was appealed to the
Assistant Secretary-Indian Affairs in 1989, who reversed that
finding and concluded that Margarita should be considered a
full-blooded Pala Indian. Pursuant to the 1961 Ordinance, the
Executive Committee was then compelled to add Margarita’s

1
Margarita’s blood quantum depends upon the identity and lineage of
her father. The evidence on this issue is somewhat conflicting. For
instance, a reconstructed version of the original membership roll lists
Margarita as a full-blooded Pala Indian, but a copy with pen-and-ink edits
changed her designation to one-half Pala Indian. Likewise, some records
indicate that Margarita’s father was “unknown,” but available probate
testimony from a proceeding in the 1920s suggests that her father was
known, and that he was a full-blooded Pala Indian.
8 AGUAYO V. JEWELL

great-great-grandchildren, with the requisite 1/16 blood
quantum, to the Band’s membership rolls.

II. Pala Constitution

On November 22, 1994, the Pala Band held a general
election in which the tribe voted to adopt a new constitution
to supplant the Articles of Association. The Pala Band
submitted the Constitution to the BIA for approval in March
1995. The most relevant change was that the six-member
Executive Committee (not the General Council) would have
authority to “amend and/or replace its existing Enrollment
Ordinance with an Ordinance governing adoption, loss of
membership, disenrollment, and future membership.” The
agency recommended some changes, and the final version of
the Constitution was completed in 1997. The Constitution
provided that it would “become effective immediately after
its approval by a majority vote of the voters voting in a duly-
called elections [sic] at which this Constitution is approved
by the Bureau of Indian Affairs.”

On November 19, 1997 at a special meeting, with a
quorum of the General Council present, the Council passed
Resolution 97-36 to “adopt the Pala Tribal Constitution to
supersede the Articles of Association.” The resolution noted
in a preambulatory clause that “on November 22, 1994” the
tribe had voted to “revise the Pala Tribal Articles of
Association into the Pala Tribal Constitution,” suggesting that
the vote in 1994 was sufficient to approve the new
Constitution.
 AGUAYO V. JEWELL 9

The Band submitted the 1997 Constitution to the Regional
Director of the BIA, who recommended further changes.2 In
a letter, the Regional Director noted that “[b]ased on a recent
opinion by the Regional Solicitor of a non-IRA Tribe’s
document, it was determined that Bureau review and approval
was not required.” She also noted that “the Pala General
Council had already adopted the constitution by resolution
dated 11/19/97,” suggesting that in the BIA’s estimation,
Resolution 97-36 was sufficient to adopt the Constitution.
Nonetheless, the Regional Director wrote that if the Band
decided to incorporate the BIA’s recommendations and
changes, the BIA would approve it retroactive to the date of
Resolution 97-36. The Chairman of the Executive Committee
responded that the Band did not want to incorporate the
BIA’s suggestions, but would like to have the Constitution
immediately approved nonetheless. On July 25, 2000, the
BIA issued a Certificate of Approval stating that the
“Constitution of the Pala Band of Mission Indians is hereby
approved retroactive to the date of adoption on November
123, 1997.”

2
One of the suggested changes proved to be a prescient warning. The
Regional Director noted that “when the governing body of the tribe
delegates totally the enactment of governing documents to its executive
body, problems may occur causing internal disputes. In adhering to the
governmental principle of checks and balances between the General
Council and the Executive Committee, it is recommended that the General
Council not delegate the enactment of Ordinances to the Executive
Committee.” (Emphasis added).
3
This date appears to be erroneous; Resolution 97-36 was passed on
November 19, 1997. The Regional Director’s previous letter reflects the
correct date.
10 AGUAYO V. JEWELL

There is some dispute concerning whether the general
tribal membership had notice that the 1997 Constitution was
the new governing document of the tribe. The Pala Band
appears to have been less than meticulous in using the correct
terminology to refer to the governing documents; for
example, the Band’s website in 2012 stated that it was
organized under “Articles of Association.” However, the facts
indicate that in the years following Resolution 97-36, the
tribal membership was at least on constructive notice that the
Constitution had been adopted.

As an initial matter, Resolution 97-36 was voted on
during a meeting of the General Council, at which a quorum
was present. Every adult member of the tribe is a member of
the General Council; it is comprised of the same group of
people that would have been eligible to vote on the
Constitution in a more formalized election. The meeting was
announced prior to its occurrence. Minutes were taken of that
meeting, and Plaintiffs do not allege that they were unable to
access records of the meeting, Resolution 97-36, or the 1997
Constitution.

Additionally, subsequent references and amendments to
the Constitution indicate that the general membership was on
notice of the Constitution. In another General Council
meeting on June 11, 2003, a member offered a motion that “at
eighteen (18) you get a copy of [the] Tribal Constitution.”
The General Council voted in favor of the motion, and the
minutes reflect “Action Instructions” to “send [a] copy to all
Tribal Members eighteen (18) and over.”

In a meeting on July 14, 2004, the General Council
meeting minutes reflect that “motions were passed by the
General Council” to put “Constitutional Amendments” on the
 AGUAYO V. JEWELL 11

ballot. Those amendments included changes to the term
limits, qualifications, and residency requirements for
members of the Executive Committee. The minutes reflect
that in an “election,” the Band had voted to adopt those
“Amendments to the Pala Constitution.”

III. The 2009 Ordinance

Pursuant to its authority under the 1997 Constitution, the
Executive Committee adopted a new enrollment ordinance in
2009 (the 2009 Ordinance) to replace the 1961 Ordinance. Its
prefatory language stated that the Committee did “not intend
to alter or change the membership status of individuals whose
membership has already been approved and who are currently
listed on the membership roll of the Pala Band.”
Nevertheless, the operative language of the 2009 Ordinance
gave the Executive Committee the power to “reevaluate” an
applicant based on “misrepresented or omitted facts that
might have made him/her ineligible for enrollment,” and
remove such members from the rolls. A person who has
received an adverse decision from the Executive Committee
may “appeal” to the Regional Director, who is tasked with
reviewing the decision and making a “recommendation” to
the Executive Committee. After receiving the
recommendation, “the Executive Committee shall meet and
consider that recommendation and make a final decision on
the appeal of [the] decision. The decision of the Executive
Committee shall be final.” Thus, the 2009 Ordinance gave the
Executive Committee ultimate authority over enrollment
decisions, and relegated the BIA to an advisory role.
12 AGUAYO V. JEWELL

IV. Plaintiffs’ Disenrollment

In June 2011, the Executive Committee revisited the
enrollments of eight of Margarita’s great-great-grandchildren
“at the request of Pala tribal members,” invoking its authority
pursuant to the 2009 Ordinance. It concluded that those eight
descendants should be disenrolled, citing the 1985
recommendation of former Regional Director Dowell, who
concluded that there was insufficient evidence to declare
Margarita a full-blooded Pala Indian. Shortly thereafter, the
Executive Committee sent similar disenrollment notices to
150 of Margarita’s descendants. The notices stated that an
appeal could be filed with the Regional Director.

The first eight members to be disenrolled appealed to the
Regional Director, who recommended that the Band reverse
its decision. However, the Regional Director noted that she
only had advisory authority under the 2009 Ordinance. A few
months later, the Regional Director made a substantively
identical recommendation with regard to the remaining
individuals who had been disenrolled. The Executive
Committee did not follow the Regional Director’s
recommendations to re-enroll Margarita’s descendants.

The Assistant Secretary - Indian Affairs (AS-IA)
affirmed, concluding that “applicable tribal law established a
limited role for the Regional Director to make
recommendations on tribal action on enrollment appeals, but
the law reserves ultimate decision-making authority with the
Band.” In reaching this conclusion, the AS-IA rejected
Plaintiffs’ arguments that the 1997 Constitution, which
provided the basis for the 2009 Ordinance granting
enrollment authority to the Executive Committee, was void.
He concluded that any challenge to the agency’s approval of
 AGUAYO V. JEWELL 13

the 1997 Constitution was time-barred, since more than six
years had passed since the BIA’s approval of it in 2000. The
AS-IA also determined that even if a challenge was not time-
barred, the agency was nevertheless correct when it chose to
tread lightly and not overly scrutinize the procedures used by
the tribe to ratify the Constitution in order to “avoid[]
unnecessary intrusion in tribal self-governance.” The AS-IA
accepted the Band’s position that Resolution 97-36, adopted
at a General Council meeting with a quorum present, was a
sufficient “election” to adopt the Constitution. In the
alternative, the AS-IA concluded that the general election in
November 1994, when the tribe approved the adoption of a
constitution, was sufficient to make the 1997 Constitution the
valid governing document of the tribe.

Because he had concluded that the 1997 Constitution was
valid, the AS-IA did not reach the merits of Plaintiffs’ claim
that the Executive Committee wrongly disenrolled them. The
AS-IA affirmed the Regional Director’s reasoning that under
the 2009 Ordinance, the BIA did not have authority to compel
the Executive Committee to change its decision. Finally, the
AS-IA declined to add two minor children to the agency
appeal, because they had not sought relief from the Regional
Director, and therefore their claims were not “within the
scope of the issues pending” in the agency appeal.

Sixty-five of the disenrolled members then commenced
a declaratory relief action in district court against the
Secretary of the Interior, the AS-IA, the Regional Director,
and other federal officials. They invoked 5 U.S.C.
§ 706(2)(A), alleging that the AS-IA’s decision was
“arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” The district court granted summary
judgment for Defendants, holding that the agency did not act
14 AGUAYO V. JEWELL

arbitrarily or capriciously with respect to any of its decisions.
Plaintiffs then filed this timely appeal.

ANALYSIS

“We review de novo the district court’s grant of summary
judgment.” Chemeheuvi Indian Tribe v. Jewell, 767 F.3d 900,
903 (9th Cir. 2014). “Summary judgment is appropriate when
‘there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.’” Id. (citing
Fed. R. Civ. P. 56(a)).

The propriety of the BIA’s “hands-off” approach hinges
on whether the Articles of Association and the 1961
Ordinance continue to govern the Band and its membership
disputes. If they do, the BIA has the authority to make final
decisions with regard to enrollment in the Band. On the other
hand, if those documents were supplanted by the 1997
Constitution and 2009 Ordinance, the BIA only has an
advisory role and cannot compel the Executive Committee to
re-enroll Plaintiffs.

In this appeal, Plaintiffs argue that the BIA’s conclusion
that the 1997 Constitution and 2009 Ordinance were the
governing law to be applied was arbitrary and capricious; that
the federal government’s general trust responsibility toward
Native Americans requires the BIA to take action to protect
Plaintiffs and their membership rights; and that the 1989
decision by the AS-IA, which ruled that Margarita was a full-
blooded Pala Indian, has binding and preclusive effect on the
Band. They also challenge the AS-IA’s decision not to join
the two minors in the agency appeal.
 AGUAYO V. JEWELL 15

In response, Defendants argue that we are without
jurisdiction to review the AS-IA’s decision at all, because
tribal disputes are generally beyond federal adjudication, and
because any decision made by the AS-IA was committed to
agency discretion by law. They also defend the AS-IA’s
decision regarding the applicability of the 1997 Constitution
on the merits.

We consider the contentions of the parties in turn.

I. Jurisdiction and Standard of Review

Defendants contend that we do not have jurisdiction to
review this case because federal courts cannot adjudicate
tribal membership decisions, and in the alternative, because
the AS-IA’s decision was committed to agency discretion by
law. We find neither argument meritorious.

A. Tribal Membership Disputes

Tribal enrollment decisions are generally beyond the
power of federal courts to review. “A tribe’s right to define its
own membership for tribal purposes has long been recognized
as central to its existence as an independent political
community.” Santa Clara Pueblo v. Martinez, 436 U.S. 49,
72 n.32 (1978). Tribes are “immune from federal court
jurisdiction in disputes regarding challenges to membership
in the tribe,” and may not be sued for a reversal of an
intratribal membership enrollment decision. Lewis v. Norton,
424 F.3d 959, 961 (9th Cir. 2015).

Nor may a plaintiff make an “end run” around tribal
sovereign immunity by simply naming a federal agency in a
lawsuit instead of a tribe. Id. at 963. In Lewis, after a tribe
16 AGUAYO V. JEWELL

denied the plaintiffs’ application for enrollment, the plaintiffs
immediately filed an action for declaratory and injunctive
relief against the BIA in the district court. Id. at 961. That
action sought an order instructing the BIA to compel the tribe
to enroll the plaintiffs. Id. The plaintiffs had not sought any
relief from the BIA before filing suit. See id. at 963. The
court held that this was a transparent effort “to do an end run
around sovereign immunity,” and again held that federal
courts have no jurisdictional basis to directly review a tribe’s
enrollment decisions. Id.

A different scenario arises when a suit is not a direct
challenge to a tribe’s enrollment decision, but is instead a
challenge to agency action under the Administrative
Procedures Act (APA), 5 U.S.C. §§ 500–596. When a
plaintiff has previously sought relief from the BIA, federal
jurisdiction is proper to the extent that the plaintiff seeks
review of the agency’s decision “under the APA’s arbitrary
and capricious standard.” Alto v. Black, 738 F.3d 1111, 1123
(9th Cir. 2013).

A factual pattern similar to the one before us here arose
in Cahto Tribe of Laytonville Rancheria v. Dutschke,
715 F.3d 1225 (9th Cir. 2013). The Cahto Tribe’s General
Council voted to disenroll twenty-two tribal members. Id. at
1226. One of the disenrolled members appealed to the
Regional Director, who “directed the Tribe to place the
disenrolled members back on the membership roll.” Id. at
1227. As in this case, the merits of Cahto Tribe focused upon
whether the tribe’s governing documents authorized the BIA
to compel the tribe to re-enroll the plaintiffs. Id. at 1228. On
appeal, we held that the federal courts had jurisdiction to
review the BIA’s decision, including the question of whether
the BIA had jurisdiction under tribal law to review the
 AGUAYO V. JEWELL 17

disenrollment decisions. Id. In Alto, we made explicit what
was implicit in Cahto Tribe: that the propriety of agency
action is a federal question over which we have jurisdiction,
even where the agency applied tribal law in the context of a
membership dispute. 738 F.3d at 1123–25.

B. Application of the APA

“[F]inal agency action for which there is no other
adequate remedy in a court [is] subject to judicial review.”
5 U.S.C. § 704. Judicial review under the APA is not proper,
however, if the “agency action is committed to agency
discretion by law.” 5 U.S.C. § 701(a)(2). The APA 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). The question is
whether the AS-IA’s decision is a “final agency action,” and
whether that agency action is “committed to agency
discretion by law.”

1. Final Agency Action

The AS-IA did not take affirmative action to compel the
Band to re-enroll Plaintiffs; instead, it declined to intervene
on behalf of Plaintiffs in the enrollment dispute. Defendants
contend that because the AS-IA failed to act in the Plaintiffs’
interest, its decision does not constitute “final agency action”
from which legal consequences will flow. This is incorrect.
Under the APA, we have jurisdiction to review more than just
affirmative agency action. “Agency action” in the statute
“includes the whole or part of an agency rule, order, license,
sanction, relief, or the equivalent or denial thereof, or failure
to act.” 5 U.S.C. § 551(13); see 5 U.S.C. § 701(b)(2)
(referring to section 551 for the definition of “agency
18 AGUAYO V. JEWELL

action”). The BIA’s “denial” of relief to Plaintiffs, and its
“failure to act” on their behalf, is a “final agency action”
subject to judicial review.

2. Committed to Agency Discretion by Law

Judicial review of a final agency action is not proper if the
“agency action is committed to agency discretion by law.”
5 U.S.C. § 701(a)(2); Heckler v. Chaney, 470 U.S. 821, 828
(1985) (“[B]efore any review at all may be had, a party must
first clear the hurdle of § 701(a).”). The Supreme Court “has
cautioned that this exception is very narrow, and is applicable
only where statutes are drawn so broadly ‘that there is no law
to apply.’” Moapa Band of Paiute Indians v. U.S. Dep’t of
Interior, 747 F.2d 563, 565 (9th Cir. 1984) (quoting Citizens
to Preserve Overton Park v. Volpe, 401 U.S. 402, 410
(1971)). “Preclusion of judicial review is not lightly inferred,
and usually will not be found absent a clear command of the
statute.” Id. (citing Barlow v. Collins, 397 U.S. 159, 166–67
(1970)).

At oral argument, Defendants contended that the reason
there is “no law to apply” is because the IRA, with its
prescribed procedures for enacting tribal governing
documents, does not apply to the Pala Band. Instead, the AS-
IA acted according to the agency’s general powers over
Indian affairs. The BIA’s enabling statute gives the
Commissioner of Indian Affairs (under the direction of the
Secretary of the Interior) the “management of all Indian
affairs and of all matters arising out of Indian relations.”
25 U.S.C. § 2. Thus, Defendants contend that because the
enabling statute is so general, there is “no law to apply” and
their actions are “committed to agency discretion by law.”
 AGUAYO V. JEWELL 19

We agree that the IRA does not apply to the Pala Band
and thus, to the extent Plaintiffs rely upon language from that
statute to support their position, they are in error. However,
we disagree that the enabling power in 25 U.S.C. § 2 is so
broad (and so unmoored from any legal standards) that the
BIA’s discretion under that section is unreviewable.

a. Application of the IRA

In the early twentieth century, the federal government’s
policy toward Native American tribes encouraged individual
land ownership and assimilation of Native Americans into
general American society. See Bugenig v. Hoopa Valley
Tribe, 266 F.3d 1201, 1205 (9th Cir. 2001) (en banc). That
approach was unsuccessful, and Congress changed its policy
to instead promote tribal sovereignty and self-government,
principally through the passage of the IRA. Id.

Plaintiffs draw upon the IRA because it includes
procedures for tribes to adopt governing documents, and for
the Secretary of the Interior to approve them.4 See 25 U.S.C.
§ 476. A tribe may adopt a constitution “at a special election
authorized and called by the Secretary,” according to rules
promulgated by the agency. 25 U.S.C. § 476(a). If it does so,
the Secretary “shall” approve the constitution unless she finds

4
At oral argument, Plaintiffs argued that in order for a governing
document to be validly approved, it must be approved by the Secretary
personally. Plaintiffs offered no authority supporting this contention. The
BIA’s enabling statute specifically authorizes the Secretary to “delegate,
from time to time, . . . [her] powers and duties . . . to the Commissioner of
Indian Affairs,” who is in turn authorized to “delegate, in like manner . . .
to the assistant commissioners, or the officer in charge of any branch,
division, office, or agency of the Bureau of Indian Affairs.” 25 U.S.C.
§ 1a.
20 AGUAYO V. JEWELL

that it is “contrary to applicable laws.” Id. § 476(d). A tribe
also “retain[s] inherent sovereign power to adopt governing
documents under procedures other than those specified” by
the agency. Id. § 476(h). Tribes that adopt constitutions
pursuant to other procedures are not guaranteed approval by
the Secretary, but the Secretary has discretion to approve
them nonetheless. See Cal. Valley Miwok Tribe v. United
States, 515 F.3d 1262, 1266–67 (D.C. Cir. 2008). The
Secretary properly exercises discretion not to approve a
governing document when it does not “reflect the
involvement of the whole tribal community.” Id.

However, the IRA, including the provision requiring
Secretarial approval of organizational documents, does not
automatically apply to all federally-recognized tribes. By its
terms, it does not apply to reservations “wherein a majority
of the adult Indians, voting at a special election duly called by
the Secretary of the Interior, shall vote against its
application.” 25 U.S.C. § 478. The parties do not dispute that
when the Pala Band held such an election in 1934, it voted
against becoming an IRA tribe.

As noted, the Pala Band adopted governing documents in
1960, and worked with the BIA to approve them. However,
such actions do not make the IRA applicable to the Band. In
United States v. Anderson, 625 F.2d 910, 913–14 (9th Cir.
1980), a member of the Fort Peck Tribes argued that a
provision of the IRA supported his position on a taxation
issue. We rejected his argument on the ground that the IRA
“does not apply to the Fort Peck Tribes” because they “voted
against the Act.” Id. at 916. Although they later chose to
adopt a tribal constitution “and have since behaved and been
treated by Interior exactly as if they were IRA tribes,” the
language of the IRA does “not disappear from our view
 AGUAYO V. JEWELL 21

simply because the Interior chooses to wink.” Id. We noted
that if the Fort Peck Tribes “wish to be relieved from the
effects of their negative vote, they must seek such relief from
Congress.” Id. Like the Fort Peck Tribes, the Pala Band
appears to have been treated as if it was an IRA tribe for
much of its history. However, the fact remains that the Band
is not an IRA tribe, and the IRA, including any procedural
protections for the adoption of governing documents, does
not apply.

b. General Enforcement Power

Instead of acting pursuant to the IRA, the BIA acted
under its broad powers over Indian affairs articulated in
25 U.S.C. § 2. (“The Commissioner of Indian Affairs shall,
under the direction of the Secretary of the Interior . . . have
the management of all Indian affairs and of all matters arising
out of Indian relations.”). Defendants argue that in choosing
to respect the 1997 Constitution, the agency was making an
executive, policy-based decision of one sovereign
government recognizing another. Thus, they contend that
their decision was “committed to agency discretion by law”
because there is “no law to apply.”

Defendants are correct that no specific federal law
governed when reviewing the Executive Committee’s
decision. Nevertheless, the agency did review and apply tribal
law. The Regional Director’s letter concluded that the 2009
Ordinance “does provide authority to the Bureau of Indian
Affairs to review and make a recommendation on enrollment
appeals to the Executive Committee and does not provide
[the] Bureau of Indian affairs the authority to decide
enrollment appeals.” The AS-IA made a threshold decision
that the 1997 Constitution (and therefore the 2009 Ordinance)
22 AGUAYO V. JEWELL

were legitimate, but that too was based on an examination of
tribal law. He noted that the 1997 Constitution must be
approved at a “duly-called election[],” and analyzed whether
a meeting of the General Council was a sufficient “election”
according to the Articles of Association, the 1997
Constitution, and the Band’s practice.

In Alto, we held that the BIA’s decision on an enrollment
issue is not “committed to agency discretion by law” where
the agency must apply tribal law to reach its decision.
738 F.3d at 1124. In Alto the BIA proceeded, as here, under
its “official capacity as a manager of Indian affairs under
25 U.S.C. § 2.” Id. The tribal governing documents in Alto
expressly incorporated federal regulations that required
Secretarial approval of disenrollment decisions. Id. The court
held that “by reason of that . . . incorporation, the Secretary’s
decision is not ‘committed to agency discretion by law.’
Rather, the Secretary must apply the tribe’s own enrollment
criteria.” Id. (citation omitted). We held that the mere fact
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.” Id.

In this case, the BIA was not making a generalized
decision about whether to recognize the Executive Committee
as the legitimate government of the Band, untethered to any
legal standard. At each level of agency review, it clearly
applied tribal law to answer the same question at issue in Alto
– whether “the tribe’s own governing documents vest the
[BIA] with ultimate authority over membership decisions.”
Id. at 1115. The exception to judicial review under the APA
for actions that are “committed to agency discretion by law”
does not apply, and we conclude that we have jurisdiction to
review the agency’s decision.
 AGUAYO V. JEWELL 23

II. Reasonableness of the AS-IA’s decision

The APA requires that we set aside agency action that is
“arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” 5 U.S.C. § 706(2)(A). The arbitrary
and capricious standard of review is “highly deferential; the
agency’s decision is entitled to a presumption of regularity,
and we may not substitute our judgment for that of the
agency.” San Luis & Delta-Mendota Water Authority v.
Jewell, 747 F.3d 581, 601 (9th Cir. 2014) (internal quotation
marks omitted).

“The rejection of an application for enrollment or the
disenrollment of a tribal member by a tribal committee” may
only be appealed to the BIA “when the tribal governing
document provides for an appeal of the action to the
Secretary.” 25 C.F.R. § 62.4(a)(3). Plaintiffs argue that the
AS-IA abused his discretion when he concluded that the 1997
Constitution was the valid governing document of the tribe,
and that applicable tribal law did not authorize the agency to
compel the Pala Band to re-enroll Plaintiffs. We disagree.
The AS-IA reasonably decided that the statute of limitations
precluded a direct challenge to the agency’s approval of the
1997 Constitution; that the 1997 Constitution was validly
adopted in any event; and that the current governing
documents “established a limited role for the Regional
Director to make recommendations on tribal action on
enrollment appeals, but the law reserves ultimate decision-
making authority with the Band.”

Plaintiffs, in their agency appeal and in their case in
federal court, insist that the 1997 Constitution was not validly
adopted by the Band. By extension, they argue that the BIA
should not have approved that Constitution in 2000, and
24 AGUAYO V. JEWELL

should not have relied upon that approval in the current
enrollment dispute.

To the extent Plaintiffs’ claims rely on directly
challenging the BIA’s 2000 decision, it is barred by the
statute of limitations. “[E]very civil action commenced
against the United States shall be barred unless the complaint
is filed within six years after the right of action first accrues.”
28 U.S.C. § 2401. This time bar applies to actions under the
APA. Wind River Min. Corp. v. United States, 946 F.2d 710,
713 (9th Cir. 1991). The right of action generally accrues at
the time the agency action becomes final. See id. at 715.
There is a limited exception, however, when a plaintiff
challenges the “substance of an agency decision as exceeding
constitutional or statutory authority.” Id. In that instance, the
statute of limitations begins to run when the ultra vires
agency action is adversely applied to the plaintiff. Id.

Plaintiffs challenge the “substance” of the 2000 approval,
but they do not do so on the basis that the BIA’s approval
“exceed[ed] constitutional or statutory authority.” Id. Their
arguments are focused on whether the BIA should have
accepted and approved a document that was not voted on by
the Band in a formal election. Plaintiffs thus “protest the
agency’s action as a matter of policy or procedure,” id., and
are subject to the six-year statute of limitations. Because their
action was commenced twelve years after the BIA’s 2000
approval was final, their challenge to that decision is time-
barred.

However, even if Plaintiffs had challenged the BIA’s
retroactive approval of the 1997 Constitution within the
statute of limitations, it is highly unlikely they would have
been successful. The Regional Director in 2000 noted that
 AGUAYO V. JEWELL 25

because the Pala Band was not an IRA tribe, “Bureau review
and approval was not required” for the Band to adopt the
1997 Constitution as its governing document. In other words,
the Band could have adopted the 1997 Constitution
notwithstanding agency approval or disapproval.

Plaintiffs make the general argument that the AS-IA
abused its discretion in its 2013 decision when it relied on the
1997 Constitution, which Plaintiffs argue is void as a matter
of tribal law. But, as the AS-IA noted in his decision, there is
at least some evidence that the 1997 Constitution was valid.
The Articles of Association state that they may be “amended
by a majority vote of the General Council and such
amendment shall be in effect upon the approval of the
Commissioner of Indian Affairs.” It does describe formal
“election” procedures in the context of electing members of
the Executive Committee, referring to polling places and
absentee ballots. But it does not define the term “election,” or
limit the type of “vote” or “election” that is required to amend
or replace the Articles. In 1994, the Band as a whole voted in
a formal election to replace the Articles of Association with
a then to-be-drafted constitution.

The 1997 Constitution likewise does not define what
constitutes a “duly-called election[].” After the General
Council adopted Resolution 97-36, the Pala Band sent the
1997 Constitution to the Regional Director for approval, and
represented that it had been “voted” on and “passed” by the
Band. This indicates that, in the estimation of the Band’s
government, the General Council vote was sufficient to adopt
the new constitution. The AS-IA noted that “[i]n practice . . . ,
the Articles of Association were amended at both meetings
and at elections, as long as a quorum of 25 was present.” He
concluded that the Band “used these terms interchangeably.”
26 AGUAYO V. JEWELL

Plaintiffs presented counter-evidence indicating that no
sufficient “election” was held. They submitted a declaration
from Elsie Lucero, a former BIA employee responsible for
advising the Pala Band’s enrollment committee. She asserted
that in her “years of experience with the BIA, ‘election’
means tribal members are allowed to vote in a noticed,
balloted election.” She attested that the word “election” in the
1997 Constitution “means an established election ordinance,
polling places, an election committee, and absentee ballots.”
Plaintiffs also submitted a declaration from King Freeman, a
former member of the Executive Committee. He declared that
“it was our custom and tradition that when there were to be
major amendments contemplated to the Articles of
Association, the Band always held a referendum election
where all eligible voters had the right to vote by ballot.” As
a signer of Resolution 97-36, he represented that the
resolution “was not meant to replace a future referendum
election.”

The procedures used to adopt the 1997 Constitution
appear to be somewhat informal. However, when it comes to
matters of tribal governance and membership, the AS-IA
explained that the BIA generally maintains a hands-off
approach, treading lightly to “avoid[] unnecessary intrusion
in tribal self-governance.” (Citing Cheyenne River Sioux
Tribe v. Aberdeen Area Dir., 24 IBIA 55, 62 (1993) and
Santa Clara Pueblo, 436 U.S. at 60, 63). See also Cal. Valley
Miwok Tribe, 515 F.3d at1267 (“[T]he sovereign nature of
Indian tribes cautions the Secretary not to exercise
freestanding authority to interfere with a tribe’s internal
governance . . . .”). The claimed irregularities in tribal voting
procedures are not the proper subject of exacting scrutiny by
the BIA. Moreover, our review of the BIA’s actions under the
APA is in turn highly deferential; we decide only whether the
 AGUAYO V. JEWELL 27

BIA’s decision was based on a “clear error of judgment.”
Gifford Pinchot Task Force v. United States Fish & Wildlife
Serv., 378 F.3d 1059, 1065 (9th Cir. 2004). We conclude that
the BIA does not commit a clear error of judgment when it
can “state a rational connection between the facts found and
the decision made.” Id. The AS-IA’s decision articulated a
rational interpretation of the facts before him, and reasonably
concluded that the 1997 Constitution was valid,
notwithstanding the absence of a formal election, based on
the language of the governing documents, and the past
practice of the Band.

III. Trust Responsibility

Plaintiffs next argue that the BIA has an independent trust
duty to protect them from unjust disenrollment. While there
is unquestionably “a general trust relationship between the
United States and the Indian people,” United States v.
Jicarilla Apache Nation, 564 U.S. 162, 176 (2011) (internal
quotation marks omitted), Plaintiffs have not persuaded us
that the trust duty requires reversal of the agency’s decision
in this context.

Plaintiffs do not cite any authority suggesting an
uncabined trust duty requiring the BIA to protect their
membership rights at any cost. Plaintiffs rely heavily on
California Valley Miwok Tribe, 515 F.3d 1262, for the
proposition that the BIA has a trust obligation to ensure the
political integrity of tribal governing documents. In
California Valley Miwok Tribe, the plaintiff and a very small
group of supporters went “rogue” and created a new
constitution that was clearly not supported by the majority of
the tribe. Id. at 1267. The Secretary declined to approve the
constitution under the IRA. The D.C. Circuit held that the
28 AGUAYO V. JEWELL

Secretary reasonably exercised its discretion because the
constitution did not “reflect majoritarian values.” Id. at
1267–68.

Plaintiffs’ reliance on California Valley Miwok Tribe is
misplaced for two reasons. First, the D.C. Circuit held only
that the Secretary’s decision not to approve the rogue
constitution under the IRA (which, as explained above, does
not control the case before us) was a reasonable exercise of
her discretion, given the government’s “obligation . . . to
promote a tribe’s political integrity.” Id. at 1267. It did not
hold that the BIA must refuse to respect the governing
document of a tribe (particularly where the BIA is only asked
to apply, and not approve, that document) if Plaintiffs
complain that it does not reflect their wishes.

Second, the AS-IA’s decision indicates that, in the BIA’s
judgment, the 1997 Constitution sufficiently reflected the will
of the Band in order to warrant the acknowledgment of the
federal government. The AS-IA acted within the confines of
his discretion in concluding that even if there were some
procedural problems in the adoption of the 1997 Constitution,
between the approval of Resolution 97-36 at the 1997
General Council meeting and the general election in 1994, the
new constitution had been validly approved. Moreover, the
1997 Constitution is not as obviously counter-majoritarian as
the constitution at issue in California Valley Miwok Tribe.
We defer to the AS-IA’s reasoned judgment that the 1997
Constitution was the valid governing document of the tribe.
See San Luis & Delta-Mendota Water Authority, 747 F.3d at
601. A generalized invocation of the government’s trust
responsibility toward Native Americans does not compel the
conclusion that the BIA acted arbitrarily or capriciously under
these circumstances.
 AGUAYO V. JEWELL 29

IV. Collateral Estoppel

Plaintiffs also argue that the tribe should be bound by the
BIA’s 1989 decision that Margarita was a full-blooded Pala
Indian, by virtue of res judicata and collateral estoppel
principles. We find this argument unavailing. The 1989
decision was made pursuant to the 1961 Ordinance, which
vested the BIA with authority over enrollment decisions. As
we have noted, that law changed with the adoption of the
1997 Constitution and then the 2009 Ordinance, which gave
the Executive Committee the power to “reevaluate” previous
membership decisions and remove members from the rolls.

Because the Executive Committee now has ultimate
authority over enrollment decisions under the 1997
Constitution and 2009 Ordinance, the AS-IA reasonably
concluded that any questions of the surviving preclusive
effect of the 1989 decision are properly directed to the Band,
not the BIA.

V. Joinder of Minors

The AS-IA declined to join two disenrolled minors to the
agency appeal, because the minors had not challenged their
disenrollment before the Regional Director. This was
reasonable. The AS-IA was “addressing appeals from the
Regional Director’s letters,” and thus the claims of the
minors, who had not suffered any adverse decision from the
Regional Director, were “not within the scope of the issues
pending before the [AS-IA].”
30 AGUAYO V. JEWELL

CONCLUSION

In reaching our decision, we recognize with regret that
Plaintiffs will suffer severe and significant consequences
from losing their membership in the Pala Band. It is also
plausible that Plaintiffs were disenrolled unjustly, or in a
manner not in accordance with tribal law. But the AS-IA
aptly noted that “in the exercise of sovereignty and self-
governance, tribes have the right, like other governments, to
make good decisions, bad decisions, and decisions with
which others may disagree.” The federal government does not
interfere in those decisions in the absence of specific
authority to do so.

The district court’s grant of summary judgment,
upholding the decision of the AS-IA, is AFFIRMED.

Defendants’ motion to supplement the record on appeal
(Dkt. 26) is GRANTED.

Plaintiffs’ motion for judicial notice (Dkt. 34, 43) is
DENIED.