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California Valley Miwok Tribe v. Salazar

United States District Court, District of Columbia

September 6, 2013

CALIFORNIA VALLEY MIWOK TRIBE et al., Plaintiffs,
v.
KEN SALAZAR, Secretary, United States Department of the Interior, et al., Defendants, and CALIFORNIA VALLEY MIWOK TRIBE, Intervenor-Defendant

Page 85

For CALIFORNIA VALLEY MIWOK TRIBE, Plaintiff: Christopher Michael Loveland, M. Roy Goldberg, SHEPPARD, MULLIN, RICHTER & HAMPTON LLP, Washington, DC; JAMES F. RUSK, PRO HAC VICE, Robert J. Uram, PRO HAC VICE, SHEPPARD, MULLIN, RICHTER & HAMPTON, LLP, San Francisco, CA.

For TRIBAL COUNCIL, YAKIMA DIXIE, VELMA WHITEBEAR, ANTONIA LOPEZ, MICHAEL MENDIBLES, EVELYN WILSON, ANTOINE AZEVEDO, Plaintiffs: Christopher Michael Loveland, M. Roy Goldberg, SHEPPARD, MULLIN, RICHTER & HAMPTON LLP, Washington, DC; JAMES F. RUSK, PRO HAC VICE, Robert J. Uram, PRO HAC VICE, SHEPPARD, MULLIN, RICHTER & HAMPTON, LLP, San Francisco, CA.

For KENNETH LEE SALAZAR, in his official capacity as Secretary of the United States Department of the Interior, LARRY ECHO HAWK, in his official capacity as Assistant Secretary-Indian Affairs of the United States Department of the Interior, MICHAEL BLACK, in his official capacity as Director of the Bureau of Indian Affairs within the United States Department of the Interior, Defendants: Kenneth Dean Rooney, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, ENRD/Natural Resources Section, Washington, DC.

For CALIFORNIA VALLEY MIWOK TRIBE, Intervenor Defendant: Robert A. Rosette, LEAD ATTORNEY, ROSETTE & ASSOCIATES, PC, Chandler, AZ; Saba Bazzazieh, PRO HAC VICE, ROSETTE, LLP, Chandler, AZ.

OPINION

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MEMORANDUM OPINION GRANTING INTERVENOR-DEFENDANT'S MOTION TO JOIN A REQUIRED PARTY AND GRANTING IN PART AND DENYING IN PART INTERVENOR-DEFENDANT'S MOTION TO DISMISS

Barbara Jacobs Rothstein, U.S. District Court Judge.

This matter is before the Court on Intervenor-Defendant's motion to dismiss for lack of subject-matter jurisdiction, Fed.R.Civ.P. 12(b)(1), and for failure to state a claim, Fed.R.Civ.P. 12(b)(6). See Motion to Dismiss Plaintiffs' First Amended Complaint for Declaratory and Injunctive Relief (" Mot." ), Dkt. No. 58, at 2 (Mar. 26, 2012). Intervenor-Defendant also argues that it is a required party but that its joinder is precluded by sovereign immunity, id. at 21; for clarity the Court will construe this argument as a motion to join a required party under Federal Rule of Civil Procedure 19(a)(2). Because the Court agrees that Intervenor-Defendant is a required party but not that its joinder is precluded by sovereign immunity, the motion to join a required party is GRANTED. Because the Court finds Intervenor-Defendant's remaining arguments to be largely -- but not entirely -- without merit, the motion to dismiss is GRANTED in part and DENIED in part.

I. BACKGROUND

This is the latest volley in a long and bitter contest for control over the California Valley Miwok Tribe (" Tribe" ), a federally recognized tribe. Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs, 78 Fed. Reg. 26,384, 26,385 (May 6, 2013). Plaintiffs are alleged Tribe members led by Yakima Dixie; the Intervenor-Defendant is a rival group led by Silvia Burley. For years each faction has attempted to organize its own tribal government and win recognition from the federal government; in this litigation, accordingly, both style themselves the " California Valley Miwok Tribe." To avoid confusion the Court will refer to Plaintiffs as the " Dixie faction" and to Intervenor-Defendant as the " Burley faction." The Dixie faction seeks to set aside a decision of the Secretary of the Interior [1] (" Secretary" ) recognizing a tribal government controlled by the Burley faction. See Letter from Larry Echo Hawk, Assistant Secretary -- Indian Affairs, to Silvia Burley and Yakima Dixie (" Decision Letter" ), Administrative Record (" A.R." ) at 2049 (Aug. 31, 2011).

At stake is not only the prestige of leadership but also the authority to manage, on behalf of the Tribe, considerable state and federal largesse. As a California tribe without a gambling operation, the Tribe is entitled to receive $1.1 million per year under a California revenue-sharing compact. California Valley Miwok Tribe v. Superior Court of San Diego County, No. D061811, 2012 WL 6584030 at *2 (Cal. Ct. App. Dec. 18, 2012). Since 2005 the California Gambling Control Commission has held these funds in trust pending resolution of the leadership dispute; by the end of 2011 the trust funds had grown to

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over $7.6 million. Id. The tribal government that wins federal recognition will likely control the $7.6 million held in trust, the $1.1 million annual payout, and any grants the federal government may bestow. See Indian Self-Determination and Education Assistance Act, 25 U.S.C. § 450h(a)(1) (" The Secretary of the Interior is authorized, upon the request of any Indian tribe ... to contract with or make a grant ... to any tribal organization for the strengthening or improvement of tribal government" ); California Valley Miwok Tribe v. United States, 424 F.Supp.2d 197, 203 n.7 (D.D.C. 2006) ( CVMT I ) (" The Tribe received approximately $400,000 in federal funds [in 2005]" ).

Prior to the decision on review, the federal government recognized a tribal government only if the tribe was " organized" pursuant to Section 476 of the Indian Reorganization Act (IRA), 25 U.S.C. § 476. See Decision Letter, A.R. at 2054; Letter from Michael D. Olsen, Acting Assistant Secretary -- Indian Affairs, to Yakima Dixie (" Nonrecognition Letter" ), A.R. at 610-11 (Feb. 11, 2005). Section 476 provides two ways for a tribe to organize. Under § 476(a), a tribe may " adopt an appropriate constitution and bylaws," which become effective when (1) " ratified by a majority vote of the adult members of the tribe ... at a special election authorized and called by the Secretary" and (2) approved by the Secretary. Alternatively, a tribe may organize pursuant to § 476(h)(1), which provides " each Indian tribe shall retain inherent sovereign power to adopt governing documents under procedures other than those specified in this section." In short, § 476(a) allows a tribe to adopt a constitution according to federal procedures, while § 476(h) allows a tribe to " adopt a constitution using procedures of its own making." California Valley Miwok Tribe v. United States, 515 F.3d 1262, 1265, 380 U.S. App. D.C. 39 (D.C. Cir. 2008) ( CVMT II ).

As recently as 1997 organization of the Tribe would have been a simple affair, for the only known member was Yakima Dixie. [2] In 1998, however, Dixie expanded the Tribe by enrolling Silvia Burley, her two daughters, and her granddaughter. Enrollment Letters, A.R. at 111-14 (Aug. 6, 1998). Soon thereafter Dixie and Burley met with representatives from the Bureau of Indian Affairs (" Bureau" ), who advised them to set up a General Council as a " stepping stone" to formal organization. Transcription of Videotape of Meeting between Yakima Dixie, Raymond Fry, Brian Golding, and Silvia Burley, A.R. at 145 (Sep. 8, 1998). Dixie and Burley accepted the advice and signed a resolution establishing a " General Council ... consisti[ing] of all members of the Tribe who are at least eighteen years of age" to serve as " the governing body of the Tribe." Resolution # GC-98-01 (" General Council Resolution" ), A.R. at 178 (Nov. 5, 1998).

Despite this promising start, relations between Dixie and Burley soon began to sour. Between 2000 and 2004, Burley and her daughters made three failed efforts to organize the Tribe by submitting to the Secretary constitutions they adopted without Dixie's participation; in their 2004 constitution, the Burley faction attempted to cut Dixie out altogether by " conferr[ing] tribal membership upon only them and their descendants." CVMT I, 424

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F.Supp.2d at 203 n.7. Dixie now returns the favor by disputing the validity of his enrollment of Burley and her descendants; he also disputes the validity of the General Council Resolution. Plaintiffs' First Amended Complaint (" Compl." ), Dkt. No. 32, at ¶ ¶ 44-47 (Oct. 17, 2011).

The Secretary rejected the Burley faction's 2004 constitution because its organizers had made no effort to seek the " involvement of the whole tribal community," including potential members of the Tribe living near its Rancheria. Letter from Dale Risling, Sr., Superintendent, Bureau of Indian Affairs, to Silvia Burley, A.R. at 499 (Mar. 26, 2004). The Burley faction brought suit in the district court, arguing that the Tribe had " lawfully organized pursuant to its inherent sovereign authority" and that § 476(h) required the Secretary to approve its constitution. CVMT I, 424 F.Supp.2d at 201. The district court dismissed the suit, id. at 203, and the D.C. Circuit affirmed, CVMT II, 515 F.3d at 1263. The D.C. Circuit held § 476(h) ambiguous and, in accordance with Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), deferred to the Secretary's reasonable determination that " her authority under § 476(h) includes the power to reject a proposed constitution that does not enjoy sufficient support from a tribe's membership." CVMT II, 515 F.3d at 1267. The court noted that although the Tribe, " by its own admission, has a potential membership of 250, only Burley and her small group of supporters had a hand in adopting her proposed constitution." Id. " This antimajoritarian gambit," the court declared, " deserves no stamp of approval from the Secretary." Id.

While litigation over the Burley constitution wound through the courts, Dixie began to identify potential members who might be eligible to participate in organizing the Tribe. Compl. ¶ ¶ 65-70. The Bureau assisted in these efforts by publishing notices in local newspapers seeking individuals who might be lineal descendants of historic members of the Tribe. See Letter from Troy Burdick, Superintendent, Bureau of Indian Affairs, to Silvia Burley and Yakima Dixie, A.R. at 1261 (Nov. 6, 2006); Legal Announcement, A.R. at 1501 (Apr. 11, 2007). Burley filed an administrative appeal of the Bureau's action, whereupon the Bureau explained its purpose was not to " determine who the members of the Tribe will be," but rather to " assist the Tribe in identifying the whole community, the 'putative' group, who would be entitled to participate in the Tribe's efforts to organize a government that will represent the Tribe as a whole." Letter from Clay Gregory, Regional Director, Bureau of Indian Affairs, to Silvia Burley, A.R. at 1498 (Apr. 2, 2007). Unsatisfied, Burley further appealed to the Interior Board of Indian Appeals (" IBIA" ). Notice of Appeal, A.R. at 1502 (Apr. 16, 2007). In the interim the Bureau received 503 ...


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