Albert Alto v. Sally Jewell

MEMORANDUM

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 “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…