United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 17, 2011 Decided May 15, 2012
No. 11-5049
TIMBISHA SHOSHONE TRIBE, ET AL.,
APPELLANTS
v.
KENNETH LEE SALAZAR, SECRETARY OF THE INTERIOR, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-00968)
Robert T. Coulter argued the cause for appellants. With
him on the briefs were Philomena Kebec and David M.
Kairys.
Brian C. Toth, U.S. Department of Justice, argued the
cause for appellees. With him on the briefs were Maureen E.
Rudolph and Aaron P. Avila. R. Craig Lawrence, Assistant
U.S. Attorney, entered an appearance.
Before: SENTELLE, Chief Judge, GRIFFITH and
KAVANAUGH, Circuit Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
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GRIFFITH, Circuit Judge: Individuals claiming to be the
Tribal Council of the Timbisha Shoshone appeal the district
court’s dismissal of their case for failure to state a claim, but
we do not reach that issue because we conclude the plaintiffs
lack standing. We vacate the judgment of the district court
and remand with instructions to dismiss their complaint for
lack of jurisdiction.
I
In 1951, certain members of the Shoshone tribes sued the
United States over the loss of their lands. See United States v.
Dann, 470 U.S. 39, 41 (1985). In proceedings stretching over
twenty-six years, the Indian Claims Commission, a now-
defunct independent agency created in 1946 to assess claims
brought by Indians against the United States, awarded the
Western Shoshone approximately $26 million in
compensation, concluding that its members had been
“deprived of their lands” by the “gradual encroachment by
whites, settlers and others” and the “acquisition, disposition or
taking of their lands by the United States.” Shoshone Tribe v.
United States, 11 Ind. Cl. Comm. 387, 416 (1962); see also
W. Shoshone Identifiable Grp. v. United States, 40 Ind. Cl.
Comm. 318 (1977). Pending distribution, the funds were
placed in an interest-bearing trust account in the United States
Treasury. Dann, 470 U.S. at 42. The Western Shoshone did
not seek the funds, but instead demanded partial return of the
lands. Timbisha Shoshone Tribe v. Salazar, 766 F. Supp. 2d
175, 179 (D.D.C. 2011). The United States rejected this
demand, and the money remained in trust for two more
decades, awaiting congressional legislation creating a
disbursement scheme. See 25 U.S.C. § 1402(d) (“In cases
where the Secretary has to submit a plan dividing judgment
funds between two or more beneficiary entities, he shall
obtain the consent of the tribal governments involved to the
3
proposed division. If the Secretary cannot obtain such
consent . . . he shall submit proposed legislation to the
Congress.”).
In 2004, Congress passed the Western Shoshone Claims
Distribution Act (Distribution Act), directing the Secretary of
the Interior to distribute the funds on a per capita basis to all
living U.S. citizens who were at least “1/4 degree of Western
Shoshone blood” and who were not receiving other Indian
Claims Commission awards. Pub. L. No. 108-270, § 3, 118
Stat. 805, 806. Individuals claiming to be the Tribal Council
of the Timbisha Shoshone, a tribe of the Western Shoshone,
sued, arguing that the Distribution Act was an
unconstitutional taking of tribal property. The district court
granted the Government’s motion to dismiss, holding that the
Distribution Act was constitutional. Timbisha Shoshone Tribe,
766 F. Supp. 2d 175. The plaintiffs now appeal that decision.
II
Before we assess the plaintiffs’ constitutional claims, we
must first determine whether they have standing to sue on
behalf of the Tribe. See Bender v. Williamsport Area Sch.
Dist., 475 U.S. 534, 541 (1986) (“[E]very federal appellate
court has a special obligation to ‘satisfy itself not only of its
own jurisdiction, but also that of the lower courts in a cause
under review . . . .’” (quoting Mitchell v. Maurer, 293 U.S.
237, 244 (1934))); Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658,
663 (D.C. Cir. 1996) (en banc) (stating that standing is a
necessary “predicate to any exercise of our jurisdiction”). The
Plaintiffs concede they lack standing to bring suit as
individuals, but allege they are the Tribal Council acting in its
official capacity to protect the interests of the Tribe. See
Timbisha Shoshone Tribe, 766 F. Supp. 2d at 182 n.3 (“All of
the individual Plaintiffs sue only on behalf of the Tribe, not
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on their own behalf as individual members of the Tribe.”
(quoting Pls.’ Reply in Supp. of Mot. for Prelim. Inj. 7)
(internal quotation marks and brackets omitted)). But whether
they are has been called into question by circumstances
arising after their appeal was taken.
The Government recognized the Timbisha Shoshone
Tribe in 1983. For years, however, the Tribe has been
embroiled in an internal leadership dispute, with two factions
claiming to be the Tribal Council. One faction, plaintiffs here,
is led by Joe Kennedy, the other by George Gholson. At the
time the Kennedy faction filed this suit, the Government did
not recognize a Tribal Council. The Kennedy faction claimed
it was the Tribal Council authorized to bring suit on behalf of
the Tribe. The Gholson faction countered with an amicus brief
in the district court opposing the suit and arguing the Kennedy
faction could not sue on the Tribe’s behalf. According to the
Gholson faction, “currently the Tribe has two elected
Councils, neither of which is recognized by the [United States
Government],” and therefore “there is no Tribal government
for outside purposes.” Br. Amicus Curiae of George Gholson
in Supp. of Def.’s Mot. to Dismiss 1, Timbisha Shoshone
Tribe, 766 F. Supp. 2d 175 (No. 1:10-cv-00968-GK), ECF
No. 16. The Government adopted the Gholson argument.
Timbisha Shoshone Tribe, 766 F. Supp. 2d at 182-83 (citing
Defs.’ Opp’n to Pls.’ Prelim. Inj. Mot. 9).
On March 1, 2011, the district court concluded that the
failure of the Government to recognize any Tribal Council did
not bar a group from suing on behalf of the Tribe. Id. at 183-
84 (citing Golden Hill Paugussett Tribe of Indians v. Weicker,
39 F.3d 51, 58-61 (2d Cir. 1994)). The district court then took
as true the factual allegations of the Kennedy faction “that
they are members of the governing Tribal Council of the
Timbisha Shoshone,” but rejected their claims as a matter of
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law, holding the Distribution Act constitutional. Id. at 184,
187, 189. The plaintiffs appealed to us on March 8, 2011.
Shortly after the district court’s decision, circumstances
changed. First, the Government recognized the Gholson
faction for “a limited time and for the limited purpose of
conducting government-to-government relations necessary for
holding a special election” to determine who constituted the
Tribal Council. Appellees’ 28(j) Ltr. Attach. 1, at 2. An
election was held on April 29, 2011, and the Tribe’s Election
Committee issued a preliminary vote count that day showing
that the Gholson faction had soundly defeated the Kennedy
faction. Id. At least one member of the Kennedy faction filed
an appeal with the Tribe’s Election Committee, which ruled
against him and then certified the results. Id. The newly-
elected Gholson faction then requested recognition as the
Tribal Council from the Government. On July 29, 2011,
Assistant Secretary for Indian Affairs Larry Echo Hawk,
“exercising by delegation the Secretary’s authority over the
relations between Indian tribes and the United States,” id. at
3, recognized the Gholson-led Tribal Council in a letter
stating:
The April 29 election . . . constituted the resolution of an
internal tribal dispute in a valid tribal forum. The
Timbisha Shoshone people embraced a tribal government
by means of an election compliant with their
Constitution. The Federal Government may not ignore or
reject the results of a tribal election that clearly states the
will of a sovereign Indian nation. Therefore, the
Department should recognize the Timbisha Shoshone
Tribal government consisting of the five people identified
in the Election Committee’s report as having received the
most votes in the April 29 election. . . . [T]his letter
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provides the Bureau with an expeditious recognition of
the Tribe’s leadership.
Id. The Kennedy faction challenged Echo Hawk’s decision in
an action filed and still pending in the Eastern District of
California. Timbisha Shoshone Tribe v. U.S. Dep’t of Interior,
2:11-cv-00995 (E.D. Cal. filed Apr. 13, 2011).
We were first made aware of these developments on
November 9, 2011, when the Government filed a letter
informing us of this pursuant to Rule 28(j). FED. R. APP. P.
28(j). We ordered supplemental briefing on whether the
Kennedy faction still had standing to bring this suit on behalf
of the Tribe and heard oral argument on the same. We now
conclude they lack standing.
It is a “bedrock principle of federal Indian law that every
tribe is ‘capable of managing its own affairs and governing
itself.’” Cal. Valley Miwok Tribe v. United States, 515 F.3d
1262, 1263 (D.C. Cir. 2008) (quoting Cherokee Nation v.
Georgia, 30 U.S. (5 Pet.) 1, 16 (1831)); see also Santa Clara
Pueblo v. Martinez, 436 U.S. 49, 62 (1978) (discussing the
“well-established federal policy of furthering Indian self-
government” (quoting Morton v. Mancari, 417 U.S. 535, 551
(1974)) (internal quotation marks omitted)). The Echo Hawk
letter acknowledges that the Timbisha Shoshone resolved
their own leadership dispute through a valid internal tribal
process. See Appellees’ 28(j) Ltr. Attach. 1, at 3 (“The April
29 election — not my March 1 Order — constituted the
resolution of an internal tribal dispute in a valid tribal
forum.”).
The Second Circuit has noted that “[t]he [Government’s]
determination that [a certain member] does not
represent . . . [a tribe] may well moot plaintiffs’ claims.”
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Shenandoah v. U.S. Dep’t of Interior, 159 F.3d 708, 713 (2d
Cir. 1998). We agree. In these circumstances, we owe
deference to the judgment of the Executive Branch as to who
represents a tribe. See Miwok, 515 F.3d at 1267 (“Although
the sovereign nature of Indian tribes cautions the Secretary
not to exercise freestanding authority to interfere with a
tribe’s internal governance, the Secretary has the power to
manage ‘all Indian affairs and . . . all matters arising out of
Indian relations.’” (quoting 25 U.S.C. § 2)); see also United
States v. Holliday, 70 U.S. (3 Wall.) 407, 419 (1866) (“In
reference to [matters of tribal recognition], it is the rule of this
court to follow the action of the executive and other political
departments of the government, whose more special duty it is
to determine such affairs.”). There is no dispute here that
Assistant Secretary Echo Hawk’s letter is authentic and
constitutes final agency action. See United States v. Chemical
Found., Inc., 272 U.S. 1, 14-15 (1926) (“The presumption of
regularity supports the official acts of public officers and, in
the absence of clear evidence to the contrary, courts presume
that they have properly discharged their official duties. Under
that presumption, it will be taken that [officials have] acted
upon knowledge of the material facts.” (internal citations
omitted)).
The Kennedy faction is unhappy with how the election
was run, who voted, and the results, but ours is not the forum
for that debate. Both parties agreed at oral argument that we
have all the necessary facts to decide whether the plaintiffs
have standing to bring this suit, and we need not remand to
the district court. Oral Arg. Tr. 14, 17. The fact is that we
have a letter from the Executive Branch recognizing the
Gholson faction, and we must not turn a blind eye to facts in
assessing jurisdiction. See Land v. Dollar, 330 U.S. 731, 735
n.4 (1947) (“In passing on a motion to dismiss because the
complaint fails to state a cause of action, the facts set forth in
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the complaint are assumed to be true . . . . But when a
question of the District Court’s jurisdiction is raised, . . . the
court may inquire, by affidavits or otherwise, into the facts as
they exist.”). As John Adams famously observed, “Facts are
stubborn things,” DAVID MCCULLOUGH, JOHN ADAMS 68
(2001), and the facts here are stubbornly clear.
Our decision has no impact on the litigation in the
Eastern District of California or, if that litigation is successful,
on the plaintiffs’ ability to re-file this lawsuit. See Kasap v.
Folger Nolan Fleming & Douglas, Inc., 166 F.3d 1243, 1248
(D.C. Cir. 1999) (“[D]ismissals for lack of jurisdiction are not
decisions on the merits and therefore have no res judicata
effect on subsequent attempts to bring suit in a court of
competent jurisdiction.”). We only consider standing, and we
conclude that the Kennedy faction has none.
III
The district court’s order dismissing the case for failure
to state a claim is vacated and the case is remanded with
instructions to dismiss the complaint for lack of jurisdiction.
So ordered.