FILED

NOT FOR PUBLICATION

JUN 10 2020

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TIMOTHY AARON JOHN; TRAVIS No. 18-17245

RAY JOHN; TIFFANY LYNNAE JOHN;

TYRONE FRED JOHN; JESSIE WADE D.C. No. PALMER; LESLIE L. PALMER; 3:14-cv-00247-LRH-VPC

SHIRLEY L. PALMER; JALEEN M.

FLOWERS, AKA Jalene Palmer Flowers,

MEMORANDUM*

Plaintiffs-Appellants,

v.

SECRETARY OF THE INTERIOR,

through its Acting Assisting Secretary Bureau of Indian Affairs,

Defendant-Appellee.

Appeal from the United States District Court for the District of Nevada Larry R. Hicks, District Judge, Presiding

Submitted June 8, 2020** San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Before: SCHROEDER and BRESS, Circuit Judges, and McSHANE,*** District Judge.

Appellants Timothy John et al. appeal the district court’s decision granting

summary judgment to the Secretary of the Interior. Appellants argue that the

Secretary’s decision to exclude them from the Western Shoshone Judgment Roll

was arbitrary, capricious, and unlawful. We have jurisdiction under 28 U.S.C.

§ 1331, and we affirm.

Appellants filed their initial applications to be included on the Western

Shoshone Judgment Roll in 2010. The Bureau of Indian Affairs Regional Office

denied their request. The Regional Office found that because Appellants’ great-

great grandmother Hattie Dyer was not 4/4 Shoshone, all eight Appellants lacked

the requisite blood quantum level to be included on the roll. The Acting Assistant

Secretary of Indian Affairs—on behalf of the Secretary of the Interior—upheld the

Regional Office’s determination. Appellants then filed this lawsuit, claiming that

the decision was arbitrary and capricious, and unsupported by substantial evidence.

Appellants concede that if Hattie Dyer was anything less than 4/4 Shoshone, they

are ineligible for inclusion on the Judgment Roll.

*** The Honorable Michael J. McShane, United States District Judge for the District of Oregon, sitting by designation. 2 Appellants argue that because the traditional census rolls typically relied

upon by the Secretary show that Hattie Dyer was 4/4 Shoshone, the Secretary

arbitrarily and capriciously determined that she was one-half Paiute when he relied

on other evidence in the decision. The regulations here, however, permit the

Secretary to consider “other documents acceptable to the Secretary” in evaluating

whether an individual is eligible for inclusion on the Western Shoshone Judgment

Roll. See 25 C.F.R. § 61.4(k)(2). The Secretary relied upon the evidence from the

1977 Northern Paiute Judgment Roll appeal filed by Hattie’s daughter, as well as

the Administrative Law Judge’s letter from Hattie Dyer’s probate hearing, when

the Secretary determined that Appellants are ineligible for benefits from the Roll.

These materials both indicate that Hattie Dyer was not full-blooded Shoshone, and

provide substantial evidence supporting the Secretary’s determination that Hattie

Dyer was at least one-half Paiute. Because the Secretary permissibly concluded

that Hattie Dyer was not 4/4 Shoshone, his decision to exclude Appellants from the

Western Shoshone Judgment Roll was lawful.

Appellants additionally argue that the Secretary’s reliance on the 1977

Northern Paiute Judgment Roll appeal violates their due process rights because

they were unable to present evidence at that proceeding. Yet the record here shows

that the Secretary weighed the evidence supporting that prior determination, along

3 with all other evidence of Hattie Dyer’s blood quantum in this proceeding.

Appellants also were not deprived of any property interest during the 1977

Northern Paiute Judgment Roll appeal which took place before they were born.

Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999) (explaining that the

first inquiry is whether there has been a deprivation of property). Thus, there was

no due process violation.

AFFIRMED.

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