FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CAHTO TRIBE OF THE LAYTONVILLE No. 11-17847
RANCHERIA ,
Plaintiff-Appellant, D.C. No.
2:10-cv-01306-
v. GEB-GGH
AMY DUTSCHKE , Regional Director
for the Pacific Region, Bureau of OPINION
Indian Affairs, United States
Department of the Interior;
KENNETH LEE SALAZAR, Secretary
of the Interior, United States
Department of the Interior; KEVIN K.
WASHBURN ,* Assistant Secretary for
Indian Affairs, United States
Department of the Interior,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., Senior District Judge, Presiding
Argued and Submitted
December 5, 2012—San Francisco, California
*
Kevin K. W ashburn is substituted for his predecessor, Larry Echo
Hawk, as Assistant Secretary for Indian Affairs, United States Department
of Interior, pursuant to Fed. R. App. P. 43(c)(2).
2 CAHTO TRIBE V . DUTSCHKE
Filed May 15, 2013
Before: Alex Kozinski, Chief Judge, Michael Daly
Hawkins and Mary H. Murguia, Circuit Judges.
Opinion by Judge Hawkins
SUMMARY**
Tribal Law
The panel reversed the district court’s judgment affirming
the federal Bureau of Indian Affairs’ decision in favor of
federal defendants in an action brought by the Cahto Tribe of
the Laytonville Rancheria, seeking to set aside the Bureau of
Indian Affairs’ decision to direct the Tribe to place the names
of certain disenrolled individuals back on its membership
rolls.
The panel held that the Tribe’s governing documents did
not provide for an appeal to the Bureau of Indian Affairs of
the Tribe’s disenrollment action.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CAHTO TRIBE V . DUTSCHKE 3
COUNSEL
Colin C. Hampson (argued), Sonosky, Chambers, Sachse,
Endreson & Perry, LLP, San Diego, California; and Reid
Peyton Chambers, Sonosky, Chambers, Sachse, Endreson &
Perry, LLP, Washington, D.C., for Plaintiff-Appellant.
Elizabeth Ann Peterson (argued), Attorney, Robert G. Dreher,
Acting Assistant Attorney General, and William B. Lazarus
and Barbara M.R. Marvin, Attorneys, Environment & Natural
Resource Division, United States Department of Justice,
Washington, D.C., for Defendants-Appellees.
Zuzana S. Ikels (argued), Coblentz, Patch, Duffy & Bass,
LLP, San Francisco, California, for Amicus Curiae The Sloan
Family.
OPINION
HAWKINS, Senior Circuit Judge:
This case touches on critical and sensitive issues of tribal
membership that are generally beyond our review because
“[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). This matter comes
to us under the Administrative Procedure Act (“APA”). The
Cahto Tribe of the Laytonville Rancheria (“Tribe” or “Cahto
Tribe”)1 seeks to set aside a decision of the Bureau of Indian
1
The Cahto Tribe is a federally recognized Indian tribe located in
Northern California.
4 CAHTO TRIBE V . DUTSCHKE
Affairs (“BIA”) directing the Tribe to place the names of
certain disenrolled individuals back on its membership roll.
The BIA issued its decision pursuant to regulations providing
for administrative review of adverse tribal enrollment actions
where, as the BIA believed in this case, a tribe has authorized
such review. See 25 C.F.R. § 62.4.
The Cahto Tribe is a small tribe, with less than 100 voting
members; twenty-two of them will remain disenrolled if the
Tribe’s decision stands. We pass no judgment on the
disenrollment and decide only whether the district court was
correct in affirming the BIA’s decision under the APA.
Ultimately, resolution of this case requires us to determine
only a very narrow issue: whether the Tribe’s governing
documents provide for an appeal to the BIA of its
disenrollment action. Because we determine that they do not,
we reverse.2
I.
This case arises from the Cahto Tribe General Council’s
September 19, 1995 vote to remove twenty-two members
from the tribal membership roll.3 The decision was
ostensibly made on the basis of a determination that each of
the individuals “ha[d] been affiliated with other tribes by
being included on formal membership rolls and/or [had] been
a distributee of a reservation distribution plan, namely the
2
A separate Memorandum disposition filed concurrently with this
Opinion addresses a related intervention issue raised in Cahto Tribe of the
Laytonville Rancheria v. Sloan, No. 11-15104.
3
This disenrollment was purportedly confirmed in 1999 by a tribal
resolution that “substantiat[ed]” the removal.
CAHTO TRIBE V . DUTSCHKE 5
Hoopa[-] Yurok settlement,” in violation of tribal
membership requirements in the Tribe’s Articles of
Association (“Articles”).4
Shortly after the initial disenrollment, the Tribe’s attorney
wrote to the BIA Superintendent (“Superintendent”),
requesting the Superintendent to “honor the action taken by
the Tribe and . . . recognize the existing tribal leaders.” The
Superintendent responded, noting that the matter was internal
and should be referred to the Tribe’s Executive Committee.
The BIA reacted similarly to inquiries from disenrolled
members. In 1999, one of the disenrolled members, Gene
Sloan, specifically requested an appeal of the disenrollment
on behalf of himself and the other disenrolled members, his
family (“the Sloans”), directing his appeal requests to the BIA
Regional Director (“Regional Director”) and to the
Superintendent. The record does not indicate that the BIA
took any immediate action to address these purported appeals.
4
To resolve litigation between the United States and tribes over
ownership of resources in the Hoopa Valley Reservation, Congress
directed the Secretary of the Interior to prepare a “roll of all persons who
can meet the criteria for eligibility as an Indian of the Reservation.”
Hoopa-Yurok Settlement Act, 25 U.S.C. § 1300i-4. It provided three
settlement options to persons included on the roll: (1) enroll as a member
of the Hoopa Valley Tribe; (2) enroll as a member of the Yurok Tribe; or
(3) take a “lump sum payment,” after which the recipient would not have
“any interest or right whatsoever in the tribal, communal, or unallotted
land, property, resources, or rights within, or appertaining to, the Hoopa
Valley Reservation, the Hoopa Valley Tribe, the Yurok Reservation, or
the Yurok Tribe.” 25 U.S.C. § 1300i-5. The Tribe and the agency dispute
whether taking funds pursuant to the Hoopa-Yurok Settlement Act, as the
disenrolled individuals did, disqualified them for membership under the
Tribe’s Articles. W e need not and do not decide this matter.
6 CAHTO TRIBE V . DUTSCHKE
In 2000, the Superintendent, responding to a letter from
a tribal attorney, stated that the BIA would not recognize the
Tribe’s decision to disenroll members “based upon what [it]
view[ed] as the [T]ribe’s misinterpretation of the Hoopa-
Yurok Settlement Act . . . relative to the [T]ribe’s Articles of
Association.” On administrative appeal, the Regional
Director upheld the Superintendent’s decision.
The Interior Board of Indian Appeals (“IBIA”), which
had jurisdiction to review the BIA decisions, vacated both the
decisions, determining that it would “not reach the merits of
the enrollment dispute because . . . the BIA officials lacked
decision-making authority in the circumstances.” In its
decision, the IBIA did identify 25 C.F.R. Part 62 as a possible
source of authority for the BIA to address the disenrollment.
This regulation, as discussed below, provides that a person
subject to an adverse enrollment action—including
disenrollment—can appeal to the Secretary of the Interior
“when the tribal governing document provides for an appeal
of the action.” 25 C.F.R. § 62.4(a)(3). The IBIA
nevertheless concluded that this regulation did not provide
authority to review in that case because the decisions
purported to address the Tribe’s appeal, not Sloan’s.
Finally, in a March 26, 2009 letter, the Regional Director
explicitly took up Sloan’s appeal, stating that he was “acting
under the authority granted to [him] by the Tribe’s [governing
documents] and under the authority granted in 25 C.F.R. Part
62, to render a decision on [the] Appeals.” The Regional
Director refused to recognize the disenrollments and directed
the Tribe to place the disenrolled members back on the
membership roll.
CAHTO TRIBE V . DUTSCHKE 7
The Tribe sought review of this decision in district court
pursuant to the Administrative Procedure Act. On cross-
motions for summary judgment, the district court granted the
Department of Interior’s motion, affirming the BIA’s
decision. The court found, in relevant part, that the IBIA’s
2002 decision did not bar the 2009 decision, the Tribe’s
governing documents authorized the BIA to consider the
appeal, and that, because the Tribe’s determination that the
Sloans were ineligible for membership was incorrect as a
matter of law, the BIA’s 2009 decision was neither arbitrary
nor capricious.
II.
We now consider the Tribe’s appeal from that decision.
The Tribe challenges the BIA’s decision on two grounds:
(1) the Tribe’s governing documents do not authorize the BIA
to review the appeal; and (2) the BIA’s decision was
precluded by the IBIA’s 2002 decision. Because we
determine that the tribal governing documents did not
authorize BIA review of the appeal, we do not reach the
second ground.
A.
We have jurisdiction to review final agency action,
5 U.S.C. § 704, and the BIA’s 2009 decision was final for the
Department of the Interior, 25 C.F.R. § 62.10. We review a
district court’s grant or denial of summary judgment de novo.
Humane Soc’y of U.S. v. Locke, 626 F.3d 1040, 1047 (9th Cir.
2010). Thus, we review directly the agency’s action under
the APA. Gila River Indian Cmty. v. United States, 697 F.3d
886, 891 (9th Cir. 2012). The APA requires us to “decide all
relevant questions of law [and] interpret constitutional and
8 CAHTO TRIBE V . DUTSCHKE
statutory provisions.” 5 U.S.C. § 706. We must “hold
unlawful and set aside agency action, findings, and
conclusions” that are “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law,” or that
are “in excess of statutory jurisdiction, authority, or
limitations, or short of statutory right.” Id. §§ 706(2)(A),(C).
Whether the BIA had jurisdiction to review the
disenrollment decisions in this case is a legal question that we
review de novo. Sauer v. U.S. Dep’t of Educ., 668 F.3d 644,
650 (9th Cir. 2012); Yetiv v. U.S. Dep’t of Hous. & Urban
Dev., 503 F.3d 1087, 1089 (9th Cir. 2007) (“We review de
novo the scope of an agency’s jurisdiction.”).
B.
Title 25, Part 62 of the Code of Federal Regulations
provides procedures for the “filing of appeals from adverse
enrollment actions by tribal committees,” if, in relevant part,
“[a]n appeal to the Secretary is provided for in the tribal
governing document.”5 25 C.F.R. § 62.2. The regulations
enumerate various “adverse enrollment action[s]” that an
aggrieved individual may appeal, including: “The rejection of
an application for enrollment or the disenrollment of a tribal
member by a tribal committee when the tribal governing
document provides for an appeal of the action to the
Secretary.” 25 C.F.R. § 62.4(a)(3).
5
The regulations also apply if “[t]he adverse enrollment action is
incident to the preparation of a tribal roll subject to Secretarial approval.”
25 C.F.R. § 62.2(b)(1). Neither party argues that the BIA’s authority in
this case arises under this subsection.
CAHTO TRIBE V . DUTSCHKE 9
We thus must decide whether the Tribe’s governing
documents provided for an appeal of disenrollment decisions.
We agree with the Tribe that they do not.
C.
The text of the Tribe’s governing documents is central to
the question of whether the Tribe authorized the BIA to
review the disenrollment of the Sloans. In relevant part, the
Tribe’s Articles of Association (“Articles”) provide:6
Article III. Membership
A. Membership of the Tribe shall consist of
persons in the following categories whose
eligibility for membership has been
established in accordance with procedures set
forth in an enrollment ordinance. . . :
6
The Tribe amended its Articles in 2006 to remove a requirement that
the BIA approve the enrollment ordinance. The Sloans dispute whether
the Articles were validly amended and they appealed the BIA’s
certification of the amendments to the IBIA in 2008. In light of the BIA’s
2009 decision, however, the IBIA appeal has stalled. Sloan, et al. v.
Acting Pac. Reg’l Dir., 51 IBIA 302, 303 (June 11, 2010). Nevertheless,
the amendment does not bear materially on our analysis. Both the agency
and the Tribe rely on the Ordinance as providing the authority to the BIA
to review the disenrollments.
Consequently, we also do not address the Sloans’ argument, set forth
in their amicus brief, that the Tribe’s charter documents are replete with
references to the BIA, including references to the BIA in the Tribe’s
Articles of Association, which indicate that the Tribe unambiguously
consented to the BIA’s review and approval of all membership decisions
and provides the authority for the BIA’s review in this case.
10 CAHTO TRIBE V . DUTSCHKE
....
3. Persons . . . shall be ineligible for
membership if they have been affiliated
with any other tribe, group or band to the
extent of (a) being included on a formal
membership roll, (b) having received an
allotment or formal assignment of land,
[or] (c) having been named as a
distributee or dependent of a distributee in
a reservation distribution plan.
....
B. The membership roll shall be brought up
to date annually in accordance with
procedures established by [the Ordinance].
Pursuant to Article III, the Tribe adopted Ordinance No. 1
(“Ordinance”),7 which provides in relevant part:
Section 3: Filing of Applications. Any
person who desires to be enrolled must file or
have filed in his behalf a written application
with the Enrollment Committee.
....
Section 4. Enrolling Period. Within 30 days
after approval of this ordinance, the
Enrollment Committee shall announce the
7
The Ordinance was adopted in 1967 and remains in effect.
CAHTO TRIBE V . DUTSCHKE 11
time allotted for enrolling and designate the
place to file applications.
Section 5: Approval and Disapproval of
Applications. The Enrollment Committee
shall approve or disapprove the application
and shall notify the applicant in writing of the
action taken.
Section 6: Appeals. A person disapproved
for enrollment shall be notified in writing of
the reason(s) for disapproval and informed of
his right to appeal to the Area Director,
Bureau of Indian Affairs . . . . If the Area
Director cannot sustain the decision of the
Enrollment Committee, he shall instruct the
Enrollment Committee to place the
applicant’s name on the roll. The Enrollment
Committee and/or the applicant, if the
application is further denied, shall have the
right to appeal to the Commissioner of Indian
Affairs.
....
Section 7: Membership Roll Preparation.
After final decisions have been rendered on
all applications, a roll shall be prepared with
a certification as to its correctness by the
Enrollment Committee and the Area Director,
Bureau of Indian Affairs.
Section 8: Keeping Membership Roll
Current. Each new Executive Committee,
12 CAHTO TRIBE V . DUTSCHKE
acting as an Enrollment Committee, shall be
responsible for reviewing the membership roll
and keeping the roll current by . . . making
corrections as necessary, including deleting
the names of persons on the roll who were
placed there erroneously, fraudulently,
otherwise incorrectly or who have
relinquished membership by written request.
We hold that the Tribe’s Ordinance is unambiguous and
that it provides a right of appeal only for rejections of
enrollment applications, not for disenrollment decisions.
Sections three, four, five, six, and seven of the Ordinance
discuss only “applicants” and “applications” for enrollment.
Section six, which provides for an appeal to the BIA,
provides appeal rights only for the rejection of applications
for membership in the Tribe, providing in part: “A person
disapproved for enrollment shall be . . . informed of his right
to appeal to the [BIA].” It explicitly refers to the appeal
rights of an “applicant.” It is also preceded by Section five,
“Approval and Disapproval of Applications,” which provides
that the “Enrollment Committee shall approve or disapprove
the application and shall notify the applicant in writing of the
action taken.” Nowhere in the tribal documents is there a
grant of authority to the BIA to review appeals from
disenrollment decisions.
The agency argues that the plain language of Section six,
the only section of the governing documents that provides for
an appeal to the BIA from a membership decision, makes no
distinction between enrollment applications and
disenrollment actions, simply granting appeal rights to
persons “disapproved for enrollment.” Thus, it argues, appeal
rights attach to both disapprovals of applications for
CAHTO TRIBE V . DUTSCHKE 13
enrollment and the disapproval of a member’s continued
enrollment, including the Sloans’ disenrollment.
The plain language of the Ordinance, however, is
inconsistent with the agency’s reading. Cf. Perrin v. United
States, 444 U.S. 37, 42 (1979) (in statutory interpretation,
“words will be interpreted as taking their ordinary,
contemporary, common meaning”). The rejection of an
application for enrollment and disenrollment are distinct.
Compare WEBSTER’S NEW INTERNATIONAL DICTIONARY 755
(3d ed. 2002) (defining “enroll” as “to insert, register, enter
in a list, catalog, or roll”), with id. at 643 (defining “disenroll”
as “to release . . . from membership in an organization”).
And, the Tribe plainly has not granted authority to the BIA to
review disenrollment determinations.8
The agency supports its reading by pointing to the
equitable implications of drawing such a distinction—new
applicants would have the right to appeal a denial of an
application for membership while life-long members who are
disenrolled would be left without recourse—as well as
procedural implications—disenrolled members would have
to take the additional step of submitting a new application
before their adverse membership determination would be
subject to review. These consequences, however, do not
8
T he BIA’s involvement in certification of the membership roll, as
provided in Section seven, does not dictate a contrary result. While
Section seven provides that the BIA must certify the membership
roll— which can be kept current as provided in Section eight by “deleting
names of persons on the roll who were placed there erroneously . . . [or]
otherwise incorrectly”— as to its correctness after “final decisions have
been rendered on all applications,” it makes no mention of rights to appeal
to the BIA specific Tribal membership determinations.
14 CAHTO TRIBE V . DUTSCHKE
overcome the plain language of the Tribe’s governing
documents.
III.
As we have observed before, cases about tribal
membership often implicate issues “deeply troubling on the
level of fundamental substantive justice.” Lewis v. Norton,
424 F.3d 959, 963 (9th Cir. 2005). However, the Ordinance
provides appeal rights only for rejected applications for
enrollment.9 The Tribe thus did not grant the authority to the
BIA to review appeals from disenrollment. While mindful of
the obstacles faced by these disenrolled individuals in
applying for membership,10 we nevertheless encourage them
to reapply and to seek review by the BIA if their applications
are rejected.
REVERSED.
9
The agency concedes that the BIA gives deference to tribes’ reasonable
interpretations of their own laws. United Keetoowah Bank of Cherokee
Indians in Oklahoma v. Muskogee Area Director, 22 IBIA 75, 80 (June 4,
1992). In light of our discussion above, the Tribe’s interpretation was, at
minimum, reasonable.
10
First, under Section three of the Ordinance, the Tribe may designate
times to open the membership roll, and the Tribe’s position is that it is not
obligated to open its rolls (and has done so only periodically, including in
2010 and 2011). Additionally, the Tribe asserts that applications of
disenrolled members would be subject to a two-tiered consideration: The
Tribe would first decide whether there had been an error in disenrollment
and would then process the application.