FILED
NOT FOR PUBLICATION
SEP 20 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALBERT P. ALTO; et al., No. 15-56527
Plaintiffs-Appellants, D.C. No.
3:11-cv-02276-BAS-BLM
v.
MEMORANDUM*
SALLY JEWELL, Secretary of
Department of Interior; et al.,
Defendants-Appellees,
and
SAN PASQUAL BAND OF MISSION
INDIANS,
Intervenor.
ROLAND ALTO, Sr.; et al., No. 15-56679
Plaintiffs-Appellants, D.C. No.
3:11-cv-02276-BAS-BLM
and
SAN PASQUAL BAND OF MISSION
INDIANS,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
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Intervenor,
v.
SALLY JEWELL, Secretary of
Department of Interior; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Cynthia A. Bashant, District Judge, Presiding
Argued and Submitted September 2, 2016
Pasadena, California
Before: SILVERMAN, IKUTA, and WATFORD, Circuit Judges.
1. The plaintiffs incorrectly contend that Assistant Secretary Larry Echo
Hawk’s January 28, 2011, decision approving their disenrollment was precluded
by the April 10, 1995, enrollment order issued by then-Assistant Secretary Ada E.
Deer. In an earlier appeal, we held that under Article III, section 2 of the Band’s
Constitution, Assistant Secretary Echo Hawk had the authority to resolve this
enrollment dispute. Alto v. Black, 738 F.3d 1111, 1124 (9th Cir. 2013). The
Band’s Constitution expressly incorporates the provisions of 25 C.F.R. Part 48,
which govern enrollment decisions for the Band. See id. at 1116. Part 48
authorizes the disenrollment of Band members whose initial enrollment decision
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“was based on information subsequently determined to be inaccurate.” 25 C.F.R.
§ 48.14(d).
The plaintiffs contend that 25 C.F.R. § 48.11 (or its counterpart at 25 C.F.R.
§ 76.14) rendered Assistant Secretary Deer’s decision “final and conclusive” and
therefore unreviewable, but that contention lacks merit. Under § 48.11, an
enrollment decision by the Assistant Secretary ordinarily will be final and
conclusive—unless, under § 48.14(d), new evidence is presented demonstrating
that the prior enrollment decision “was based on information subsequently
determined to be inaccurate.” Here, as explained below, that standard was met.
Assistant Secretary Deer predicated her enrollment decision on the assumption that
Marcus Alto Sr. was the biological son of Jose and Maria Alto, and the Band’s
Enrollment Committee submitted new evidence indicating that her assumption was
inaccurate. Thus, Assistant Secretary Echo Hawk had the authority under
§ 48.14(d) to review the prior decision. (Even if the Part 76 regulations applied, as
the plaintiffs contend, those regulations also permit the disenrollment of members
whose enrollment was based on information subsequently determined to be
inaccurate. See 25 C.F.R. § 76.4(b).)
2. Based on a thorough review of the record, we conclude that Assistant
Secretary Echo Hawk’s decision approving the plaintiffs’ disenrollment was not
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“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.” 5 U.S.C. § 706(2)(A).
Several documents support the finding that Maria Alto was not Marcus Alto
Sr.’s biological mother. The newly submitted 1907 baptismal certificate for
Marcus Alto Sr. lists “Benedita Barrios,” not Maria Alto, as his mother. Newly
submitted affidavits from Band members also support that finding, as does Maria
Alto’s enrollment application from 1930, which states that she had “no issue.”
The evidence presented to Assistant Secretary Echo Hawk likewise supports
the finding that Jose Alto was not Marcus Alto Sr.’s biological father. Although
the 1907 baptismal certificate lists a “Jose Alto” as Marcus Alto Sr.’s father,
Assistant Secretary Echo Hawk reasonably concluded that other evidence was
more “telling” as to whether Marcus Alto Sr. was Jose Alto’s biological son, in
particular, the family’s failure to list Marcus Alto Sr. on each of the Band’s
censuses from 1907 to 1913 while listing Jose Alto’s son Frank on each of them.
The fact that other families may have omitted some of their biological children
from those early censuses did not preclude Assistant Secretary Echo Hawk from
affording weight to Marcus Alto Sr.’s omission from the same censuses. Assistant
Secretary Echo Hawk also reasonably concluded that two letters from Frank Alto
in 1910—which identified Jose, Maria, and Frank as members of the Alto family,
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but not Marcus—corroborated his finding that Marcus Alto Sr. was not the
biological son of Jose or Maria Alto.
Finally, Assistant Secretary Echo Hawk identified several other documents
that support the finding that Marcus Alto Sr. was not a blood member of the Band.
They include Dr. Shipek’s affidavit in which she stated that each Band elder
recalled that Jose and Maria Alto had raised a non-Indian child, and several newly
submitted affidavits from Band members stating that Marcus was adopted.
While we acknowledge that there are inconsistencies and inaccuracies in the
record, in light of our “highly deferential” standard of review for agency decisions,
see Nw. Ecosystem All. v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1140 (9th Cir.
2007), we cannot say that Assistant Secretary Echo Hawk’s decision was arbitrary,
capricious, or an abuse of discretion, 5 U.S.C. § 706(2)(A).
AFFIRMED.
The Band’s motion for leave to file its amicus brief and the plaintiffs-
appellants’ motion for judicial notice are GRANTED.