NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 31 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANDREW ALLEN; et al., No. 17-17463

Plaintiffs-Appellants, D.C. No. 3:16-cv-04403-WHA

v.

MEMORANDUM*

UNITED STATES OF AMERICA; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California William Alsup, District Judge, Presiding

Argued and Submitted November 13, 2019 San Francisco, California

Before: W. FLETCHER and BADE, Circuit Judges, and MOSKOWITZ,** District Judge.

Plaintiffs-Appellants, a group of eighteen “persons of one half or more Indian

blood,” appeal from the district court’s entry of summary judgment in favor of

Defendants-Appellees the United States of America, Sally Jewell, and Amy

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Barry Ted Moskowitz, United States District Judge for the Southern District of California, sitting by designation. Dutschke (collectively, “Appellees”) in an action challenging a decision by the U.S.

Department of the Interior (“Interior”) that Appellants are ineligible to organize as a

“tribe” under the Indian Reorganization Act (“IRA”) and its implementing

regulations. Appellants argue that Interior violated the Administrative Procedure

Act (“APA”) by denying their request to organize as a tribe. We have jurisdiction

pursuant to 28 U.S.C. § 1291 and affirm.

We review de novo a summary judgment decision, “thus reviewing directly

the agency’s action under the [APA’s] arbitrary and capricious standard.” Alaska

Wilderness League v. Jewell, 788 F.3d 1212, 1217 (9th Cir. 2015) (citation and

internal quotation marks omitted).1 Under this standard, we determine whether

Interior “relied on” improper factors, “entirely failed” to review an important issue,

failed to align its decision with the evidence, or “is so implausible that it could not

be ascribed to a difference in view or the product of agency expertise.” See Motor

Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43

(1983). We review Interior’s factual findings for substantial evidence. See San Luis

& Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014).

1 We reject Appellants’ arguments that the Indian law canon of construction and “highest fiduciary standards” apply to this appeal. In their settlement agreement, the parties agreed that any dispute about Interior’s decision would be brought pursuant to the APA and that the Indian law canon of construction would not apply. The canon also does not apply because not all tribal interests are aligned. See Redding Rancheria v. Jewell, 776 F.3d 706, 713 (9th Cir. 2015).

2 I.

This case arises from a settlement agreement prescribing an administrative

process for Appellants to apply to the Bureau of Indian Affairs (“BIA”) for a

determination of whether they are eligible to organize as a tribe. To be considered

a tribe, the settlement agreement required Appellants to satisfy criteria set forth in

25 U.S.C. § 5129 (formerly 25 U.S.C. § 479) and 25 C.F.R. § 81.1(w)(2) (2014).

These provisions define a “tribe” as “any Indian tribe, organized band, pueblo, or

the Indians residing on one reservation,” 25 U.S.C. § 5129, and “any group of

Indians whose members each have at least one-half degree of Indian blood for whom

a reservation is established and who each reside on that reservation,” 25 C.F.R.

§ 81.1(w)(2) (2014). The regulation further provides that “[s]uch tribes may consist

of any consolidation of one or more tribes or parts of tribes.” Id.

Appellants timely submitted information to Interior, claiming eligibility to

organize as the Ukiah Valley Pomo Indians. During its investigation, BIA published

notices soliciting public comments, mailed letters to residents of the Pinoleville

Rancheria (the “Rancheria”), and engaged in extensive communications with the

Pinoleville Pomo Nation (the “Nation”), a federally recognized tribe, regarding

Appellants and their request to organize.

After considering the record, Interior issued a reasoned, written decision

concluding that Appellants are ineligible to organize as a tribe. We hold that

3 Interior’s determination does not violate the APA and that substantial evidence

supports its factual findings.

II.

Appellants’ principal dispute is that despite recognizing that Appellants

possess one-half or more Indian blood and reside on the Rancheria, Interior

determined that they cannot organize as a tribe because they are “only a subset of

the Indians for whom the Pinoleville Rancheria was set aside.” Most problematic,

in Appellants’ view, is Interior’s further statement that it “does not interpret the

Indian Reorganization Act as permitting splinter groups or factions of a tribe to set

up independent tribal government.” Appellants contend that Interior improperly

considered a factor from the federal acknowledgment regulations that goes beyond

the criteria set forth in 25 U.S.C. § 5129 and 25 C.F.R. § 81.1(w)(2).

We disagree. By referencing the term “splinter group,” Interior did not

consider additional criteria, nor did it cite or reference the acknowledgement

regulations. Interior’s use of the phrase “splinter group” merely supported its factual

finding that Appellants were “only a subset” of the Indians for whom the Rancheria

was set aside. And nothing in the settlement agreement prohibited Interior from

considering prior decisions that inform its interpretation of the statutory and

regulatory criteria.

Moreover, substantial evidence supports Interior’s conclusion that Appellants

4 are a “subset” of the Indians for whom the Rancheria was set aside. Specifically,

the record reflects that the Rancheria was set aside for a particular group of Indians

in 1911, that Appellants descend from some members of that original group of

Indians, that Appellants (and their ancestors) participated in the Nation’s extended

efforts to organize as a tribe, and that Appellants (and their ancestors) participated

in management of the Rancheria during the last century.

Additionally, the Nation made repeated representations to Interior that

Appellants are enrolled members in the Nation. We consider this the most

significant evidence supporting Interior’s conclusion that Appellants constitute a

subset of the Indians for whom the Rancheria was set aside. Due to the importance

of those representations to Interior (and to this court), we recount them here.

On November 9, 2015, Interior released a “Verified Members List” for the

putative Ukiah Valley Pomo Indians, including the names of Appellants. Soon

thereafter, Interior met with senior officials of the Nation to discuss the Nation’s

concerns about the Verified Members List. In that meeting, the Nation’s

Chairwoman, Leona Williams, informed Interior that the Nation allowed Appellants

to participate in tribal activities and had never issued them disenrollment letters.

On December 4, 2015, Williams sent a letter to Interior following up on the

meeting. That letter stated that sixteen of the eighteen Appellants (all but Andrew

Allen and Allan Crabtree) were listed on the 2003 Pinoleville Voter Membership

5 List, had not been disenrolled, and were therefore “eligible to vote as members of

the Pinoleville Pomo Nation.” The letter continued: “That very same Voter

Membership list, created with the assistance of the Bureau in 2003, including the

sixteen Verified Members, is used today to effectuate voting and membership of the

Tribe. The sixteen Verified Members have not exercised their voting rights since

2005, however, they have been listed eligible to vote as members.” The letter also

stated, however, that the Tribal Council had not conducted any audit of the Voter

Membership List or verified the membership of any specific individual.

Interior contacted the Nation to clarify Appellants’ membership status

because of the Nation’s statement that it had not investigated the membership status

of any individual. In that communication, Interior advised the Nation that

determining whether Appellants were members of the Nation was “imperative” to

its decision-making process.

In a February 12, 2016 telephone call, Williams informed Interior that the

Nation recognized Appellants as tribal members and disputed their claims that they

had been disenrolled. Over the next several days, Williams continued to

communicate with Interior regarding what documentation should be submitted to

demonstrate Appellants’ membership in the Nation.

On February 22, 2016, Williams sent a letter to Interior containing a sworn

and notarized declaration incorporating twenty-eight documents intended to provide

6 “clarification of the membership status of the plaintiffs in Donald Allen, et al. v.

United States, Department of Interior.” In that declaration, Williams wrote that her

statement in an earlier letter that Appellants “have not applied for Pinoleville

citizenship and are thus not Pinoleville citizens” was “made by mistake.”2 Among

the documents incorporated into the declaration were two Pinoleville Tribal Council

resolutions, passed February 17, 2016, and February 19, 2016, declaring: “Based on

the Tribe’s Laws the ‘verified Members List’ on November 9, 2015 that (16) out of

(18) are members of the Pinoleville Pomo Tribe.” Those resolutions also called for

“the 16 tribal members” to be charged with federal crimes for representing to Interior

that they were “not members of any tribe.”

Under the lenient substantial evidence standard, a “reasonable mind” could

accept the foregoing evidence as “adequate to support [the] conclusion” that the

Rancheria was set aside for an identifiable group of Indians of which Appellants are

a subset. See San Luis & Delta-Mendota Water Auth., 747 F.3d at 601 (quotation

marks and citation omitted).

III.

2 The earlier letter, dated July 8, 2015, is also in the record. In it, Williams wrote that Appellants “have not applied for Pinoleville citizenship and are thus not Pinoleville citizens.” According to that letter, because Appellants were not lineal descendants of the original Pinoleville Indians, they would have to apply for naturalization, which “could be possible.” Nevertheless, in her February 22, 2016 declaration, Williams renounced those statements under “penalty of perjury.”

7 We also reject Appellants’ argument that even if they are a subset of the

Indians for whom the land was set aside, they can still organize as a tribe because

they are “among” the Indians for whom the land was set aside and constitute a

majority of individuals containing one-half or more Indian blood on the Rancheria.

“Tribe” is defined as, inter alia, “the Indians residing on one reservation,” 25 U.S.C.

§ 5129 (emphasis added), and a group of Indians “for whom a reservation is

established,” 25 C.F.R. § 81.1(w)(2) (2014). The statute’s use of the word “the”

shows that “Indians” is meant to refer to all or, at a minimum, a significant portion

of the Indians who live on the reservation and for whom the reservation was

established. See, e.g., Hernandez v. Williams, Zinman & Parham PC, 829 F.3d

1068, 1074 (9th Cir. 2016) (“[T]he definite article ‘the’ ‘particularizes the subject

spoken of,’ suggesting that Congress meant to refer to a single object.” (citation

omitted)); Onink v. Cardelucci (In re Cardelucci), 285 F.3d 1231, 1234 (9th Cir.

2002).

Unlike other instances where a reservation was set aside specifically for

multiple, distinct tribes, see Shoshone Tribe v. United States, 299 U.S. 476, 485–86

(1937), Appellants fail to establish that the Rancheria was set aside for their group

(the majority of whom are enrolled members in the Nation) in addition to the Nation.

IV.

Finally, we reject Appellants’ arguments that Interior failed to follow the

8 APA’s notice-and-comment rulemaking process and that Appellees fraudulently

induced them to enter into the settlement agreement. Interior did not need to follow

the APA’s rulemaking procedures because it merely adjudicated Appellants’

application and did not announce any new standard of general applicability and

future effect. See 5 U.S.C. § 551(4). We disagree with Appellants’ contention that

Interior adopted new eligibility criteria or a “one-tribe-per-reservation” rule. See

Int’l Internship Prog. v. Napolitano, 718 F.3d 986, 988 (D.C. Cir. 2013). And

Appellants fail to explain how the alleged fraudulent inducement, even if true,

changes the outcome of this appeal.

In sum, Interior “articulate[d] a satisfactory explanation for its action

including a rational connection between the facts found and the choice made,” State

Farm, 463 U.S. at 43 (internal quotation marks omitted), and we will not disturb its

decision.3

AFFIRMED.

3 We need not address Appellants’ arguments regarding the level of deference, if any, to afford Interior’s decision because even absent deference, Appellants fail to establish that the decision violated the APA.

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