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NOT FOR PUBLICATION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