FILED
NOT FOR PUBLICATION
DEC 11 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CALIFORNIA VALLEY MIWOK TRIBE No. 17-16321
et al.,
D.C. No.
Plaintiffs-Appellants, 2:16-cv-01345-WBS-CKD
v.
MEMORANDUM*
RYAN K. ZINKE, in his official capacity
as U.S. Secretary of Interior; et al.,
Defendants-Appellees,
CALIFORNIA VALLEY MIWOK TRIBE
et al.,
Intervenor-Defendants-
Appellees.
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding
Argued and Submitted November 15, 2018
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: GRABER, THACKER,** and BENNETT, Circuit Judges.
Plaintiff California Valley Miwok Tribe ("Tribe"), represented by the Burley
Council, appeals from summary judgment entered in favor of Defendants the
California Valley Miwok Tribe, represented by the Dixie Council, and the United
States. The district court held that the 2015 Decision ("Decision") by the Assistant
Secretary–Indian Affairs ("Assistant Secretary") did not violate the Administrative
Procedure Act ("APA"). Reviewing de novo, Chemehuevi Indian Tribe v. Jewell,
767 F.3d 900, 903 (9th Cir. 2014), we affirm.
The district court correctly held that the Decision did not violate the APA.1
Tribal membership is a matter to be determined by the tribe, Santa Clara Pueblo v.
Martinez, 436 U.S. 49, 72 n.32 (1978), but the Department of the Interior also has
the responsibility to ensure that organized tribes are representative of potential
membership, Aguayo v. Jewell, 827 F.3d 1213, 1226 (9th Cir. 2016). The
Decision comported with that responsibility.
The Assistant Secretary recounted the Tribe’s long litigation history but did
not rely on those earlier court holdings to reach a decision. Instead, the Assistant
**
The Honorable Stephanie Dawn Thacker, Circuit Judge for the United
States Court of Appeals for the Fourth Circuit, sitting by designation.
1
We assume, without deciding, that issue preclusion does not bar our
consideration of these issues on the merits.
2
Secretary independently examined the facts and the law, before determining that
the Tribe was not reorganized, that its membership is not limited to five
individuals, and that the United States does not recognize leadership of the tribal
government. The Decision was not arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with the law, and therefore did not violate the APA.
Aguayo, 827 F.3d at 1226.
AFFIRMED.
3