Case 2:10-cv GEB -GGH Document 36-1 Filed 03/02/11 Page 1 of 40

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1 Case :-cv-00-geb -GGH Document - Filed 0/0/ Page of 0 IGNACIA S. MORENO Assistant Attorney General BARBARA M.R. MARVIN Trial Attorney United States Department of Justice Environment and Natural Resources Division 0 D Street, N.W. Washington, D.C. 00 Telephone: () 0-00 Fax: () 0-0 Attorneys for Defendants UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA CAHTO TRIBE OF THE LAYTONVILLE ) RANCHERIA ) )) (Case No. :-cv00-geb-ggh) Case No. :-cv-00-geb-ggh Plaintiff, ) Defendants Memorandum of ) Points and Authorities in ) Opposition to Cahto Tribe s Motion ) for Summary Judgment and in vs. ) Support of Defendants Cross for ) Motion Summary Judgment ) ) Hearing: May, :00 a.m. AMY DUTSCHKE, Acting Regional ) Judge: Garland E. Burrell, Jr. Director for the Public Region, Bureau of ) Indian Affairs, United States Department ) of the Interior, KEN SALAZAR, Secretary ) of the Interior, United States Department of ) the Interior, LARRY ECHOHAWK, ) Assistant Secretary Indian Affairs, United ) States Department of the Interior, ) )) Defendants. ) )

2 Case :-cv-00-geb -GGH Document - Filed 0/0/ Page of 0 TABLE OF CONTENTS INTRODUCTION... FACTUAL BACKGROUND... STANDARD OF REVIEW... I. Administrative Procedure Act... II. Summary Judgement... ARGUMENT... I. The Regional Director Properly Relied on C.F.R. Part as Authority for the March, 0 Decision Concerning Gene Sloan s Appeals... A. C.F.R. Part Gives the BIA Authority to Review the Tribe's Adverse Enrollment Decisions... B. The Tribe s Governing Documents Provide for Appeal of an Adverse Enrollment Action to the Secretary... C. The Regional Director s Review of the Tribe s Enrollment Decision under C.F.R. Part was Authorized by Tribal Law... D. The Regional Director s Decision Is Effective As to Gene Sloan and the Sloan/Hecker Family Members... II. The IBIA s 0 Ruling Was Limited to the Question of the BIA s Authority for the Regional Director s and Superintendent s Decisions in 00 and Does Not Bar the Regional Director s March, 0 Decision.... A. The IBIA s 0 Determination that the BIA Lacked Jurisdiction to Consider the Tribe s Disenrollment Decision Applied Onlyin the Unique Circumstances Presented in that Particular Appeal... -i-

3 Case :-cv-00-geb -GGH Document - Filed 0/0/ Page of 0 B. The Regional Director Issued the March, 0 Decision as the Result of His Proper Consideration of Gene Sloan s Appeals to the BIA... III. The BIA Properly Did Not Recognize the Tribe s Decision to Disenroll the Sloan/Heckers... A. The BIA Has No Obligation to Defer to the Tribe s Interpretation of Its Laws When the Tribe s Interpretations are Patently Unreasonable... B. The Tribe s Determination that the Sloan/Heckers are Ineligible for Membership under its Articles of Association was Patently Unreasonable.... The Tribe Unreasonably Determined that the Hoopa- Yurok Settlement Act was a Reservation Distribution Plan in Contradiction of Federal Law.... The Tribe Ignored Federal Law and Unreasonably Determined that the Yurok Voting List was a Formal Membership Roll... C. The Tribe s Unreasonable Disenrollment of the Sloan/Heckers Violated the Indian Civil Rights Act... CONCLUSION... -ii-

4 Case :-cv-00-geb -GGH Document - Filed 0/0/ Page of 0 TABLE OF AUTHORITIES CASES Akee v. Office of Navajo & Hopi Indian Relocation, 0 F. Supp. (D. Ariz. )... American Hosp. Ass'n v. NLRB, U.S. 0 ()... Anderson & Middleton Co. v. Salazar, No. :0-cv-00-RBL, 0 WL (W.D. Wash., Aug., 0)... Arizona Cattle Growers' Ass'n v. U.S. Fish & Wildlife Svc., F. d (th Cir. 0)... Burlington Truck Lines, Inc. v. United States, U.S. ()... Cahto Tribe of the Laytonville Rancheria v. Pac. Reg'l Dir. IBIA (0)...,,, Citizens to Preserve Overton Park, Inc. v.volpe, 0 U. S. 0 ()... Cloud Foundation, Inc. v. Kempthorne, F. Supp.d 0 (D. Mont. 0)... Decorah v. Minneapolis Area Dir., IBIA ()... Duncan v. Andrus, F. Supp. ()... Estate of Isgrigg Towendolly, 0 IBIA, 0 WL 0 (0)... FDA v. Brown & Williamson Tobacco Corp., U.S. (00)... -iii-

5 Case :-cv-00-geb -GGH Document - Filed 0/0/ Page of 0 Greendeer v. Minneapolis Area Dir., IBIA, ()..., 0, Hopi Indian Tribe v. Comm'r, IBIA ()... Independent Acceptance Co. v. California, F.d (th Cir. 00)... Insurance Corp. Of Ireland, Ltd. v. Compagnie des Bauxites de Guinee U.S. ()... Kennedy v. Mendoza-Martinez, U.S. ()... Kiowa, Comanche & Apache Intertribal Land Use Comm. v. Acting Deputy Assistant Sec'y- Indian Affairs, IBIA, WL 0 ()... Lowe v. Acting E. Okla. Reg'l Dir., IBIA, 0 WL (0)... May v. Acting Phoenix Area Dir., IBIA, WL ()... Menominee Tribal Enter. v. Area Dir., IBIA ()... Motor Vehicle Mfrs. Ass'n. v. State Farm, U.S. ()... Mt. Graham Red Squirrel v. Espy, F.d (th Cir.)... National Farmers Union Ins. Cos. v. Crow Tribe, U.S. ()... Poodry v. Tonawanda Band of Seneca Indians, F.d (nd Cir. )... Pyramid Lake Paiute Tribe of Indians v. U.S. Dep't of the Navy F.d (th Cir.0)... Reese v. Minneapolis Area Dir., -iv-

6 Case :-cv-00-geb -GGH Document - Filed 0/0/ Page of 0 IBIA ()... San Luis & Delta-Mendota Water Auth. v. Salazar, WL (E.D. Cal., Dec., )... Santa Clara Pueblo v. Martinez, U.S. ()... Sizemore. v. Brady, U. S. ()... Stephens v. Cherokee Nation, U.S. ()... Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, F.d (th Cir. 0)... United States v. Liquidators of European Fed. Credit Bank, --- F.d ----, WL 0 (th Cir., Jan., )... - United States v. Millis, F.d (th Cir. )... Ute Indian Tribe of the Uintah and Ouray Reservation v. Phoenix Area Dir., IBIA, WL ()... Williams Gas Processing-Gulf Coast Co. LP v. Fed Energy Regulatory Comm n, F.d (D.C. Cir. 0)... STATUTES U.S.C. 0()(A)... U.S.C. 00i..., U.S.C. 00i-... U.S.C. 00i- (d)... U.S.C U.S.C. 0 ()... -v-

7 Case :-cv-00-geb -GGH Document - Filed 0/0/ Page of 0 U.S.C. 0 ()... California Rancheria Act, Pub. L. No. -, Stat., as amended by Act of Aug.,, Pub. L. No. -, Stat RULES Fed. R. Civ. P. (c)... REGULATIONS C.F.R..... C.F.R....., C.F.R..(a)... C.F.R..(a)()..., C.F.R..(b)... C.F.R. Part...,,,,,,,,,, C.F.R..(a)... C.F.R..(b)... C.F.R.... C.F.R..(a)()...,, C.F.R.. (b)... C.F.R..(a)... Organization of the Yurok Tribe Voting for Interim Tribal Governing Committee; Qualification and Procedures for Preparing a Voting List, Fed. Reg., 0 (Apr., )..., MISCELLANEOUS B Charles Alan Wright et al., Federal Practice and Procedure (d ed. )... -vi-

8 Case :-cv-00-geb -GGH Document - Filed 0/0/ Page of 0 S. Rep. No., 0th Cong. d Sess. () vii-

9 Case :-cv-00-geb -GGH Document - Filed 0/0/ Page of 0 INTRODUCTION Defendants, AMY DUTSCHKE, Regional Director for the Pacific Region, Bureau of Indian Affairs ("BIA"), KEN SALAZAR, Secretary, United States Department of the Interior ("Department"), and LARRY ECHOHAWK, Assistant Secretary - Indian Affairs, (collectively, "Defendants") file this memorandum in opposition to the motion for summary judgment filed by the Cahto Tribe of the Laytonville Rancheria ("Tribe" or "Plaintiff") and in support of Defendants' cross-motion for summary judgment. In this case, the Tribe challenges a decision of the Regional Director for the Pacific Region for Indian Affairs that was issued on March, 0. In that decision, the Regional Director exercised jurisdiction over the Tribe's decision in September to remove more than twenty individuals (collectively, "the Sloan/Heckers") from tribal membership and instructed the Tribe's General Council to place the Sloan/Heckers' names on the Tribe's membership roll. As demonstrated below, in issuing the March, 0 decision, the Regional Director, acting on appeals filed by Gene Sloan, one of the disenrolled individuals, properly exercised his authority pursuant to C.F.R. Part and Tribal governing documents and correctly decided not to recognize the Tribe's disenrollment decision. The Regional Director's March, 0 decision should therefore be upheld. FACTUAL BACKGROUND The Cahto Tribe is a federally recognized Indian Tribe, which is organized under Articles of Association that were initially adopted by the Tribe in September. / (AR000-). / / The Tribe adopted updated Articles of Association by a referendum election in January 0. The Sloan/Heckers were not notified of the election or given the opportunity to vote concerning updating the Articles. See AR00000 (Godfrey Sloan Aff.); AR0000 (Allen Sloan Aff.); AR0000 (Jeffrey Sloan Aff); AR00000 (Melody Sloan Aff.); AR0000 (Bert U. Sloan Aff.); AR0000 (Tammy Sloan Aff.). / The documents cited in this memorandum are found either in the Administrative Record, which Defendants lodged with the Court on September, ("AR"), see Not. Of Lodging (Dkt. No. ), or in the Supplemental Administrative Record, which was lodged with the Court on December,. ("SuppAR"). See Notice of Lodging (Dkt. No. ). (Case No. :-cv00-geb-ggh) - -

10 Case :-cv-00-geb -GGH Document - Filed 0/0/ Page of 0 At issue in this case is the Tribe's decision, which was made on September, when the Tribe's General Council voted to remove Sloan/Heckers from tribal membership based on a finding that the Sloan/Heckers were ineligible for membership under Article III.A.. of the Articles of Association that were in effect at that time because the Sloan/Heckers had purportedly been affiliated with another tribe and/or had been distributees of a reservation distribution plan known as the Hoopa/Yurok settlement plan. See AR000-. The September, meeting at which the vote to disenroll the Sloan/Heckers was taken was initiated by a petition that was circulated at an earlier meeting of the General Council that was purportedly held on September,. See AR000-; SuppAR000-; see also AR0000; SuppAR000- (Gene Sloan Decl.). The Sloan/Heckers did not receive notice of either of these meetings. See SuppAR000 (Gene Sloan Decl.). Soon after the Tribe's disenrollment decision, on September,, an attorney representing the Tribe requested the BIA's recognition of the disenrollment action. See SuppAR000. On October,, the Agency Superintendent responded stating that the matter was internal to the Tribe and that he had referred it to the Tribe's Executive Committee. Id. Four years later in July, after receiving additional complaints from some of the disenrolled individuals, the Superintendent wrote to the Tribe and asked that the Tribe reconsider its disenrollment decision. (AR000-). Following this communication, the BIA corresponded and met with tribal officials concerning the disenrollment decision, see AR000-, and as a result, the Tribe agreed to attempt to resolve the matter internally. Also in, Gene Sloan, one of the disenrolled individuals, lodged appeals with the BIA. Specifically, on May, June, and August,, Mr. Sloan wrote to the Regional Director and formally requested an appeal regarding the Tribe's disenrollment decision and the removal of the Sloan/Heckers from the Tribe's membership rolls. (AR000, 0000, 000). In January 00, a Tribal attorney wrote to the Superintendent to inform him that the Tribe's efforts to resolve the matter internally had been unsuccessful, and to request on behalf of the Tribe that the dispute be referred to a formal mediation service. On February, 00, the Superintendent (Case No. :-cv00-geb-ggh) - -

11 Case :-cv-00-geb -GGH Document - Filed 0/0/ Page of 0 wrote to the Tribe's Chairperson acknowledging receipt of the Tribal attorney's letter. (AR000- ). The Superintendent did not respond to the attorneys' request for referral to mediation, however, but instead, informed the Chairperson that, notwithstanding information that the Tribe had provided, the BIA had not changed its initial position and did not recognize the Tribe's disenrollment decision. Id.. The Superintendent characterized this response as a "decision" that could be administratively appealed, id., and the Tribe then appealed to the Regional Director. On December, 00, the Regional Director issued a decision stating that he fully supported the Superintendent's decision not to recognize the Tribe's disenrollment decision. (AR000-). The Tribe then appealed to the IBIA. On December, 0, the IBIA issued its decision on the Tribe's appeal and vacated the Regional Director's and the Superintendent's 00 decisions. Cahto Tribe of the Laytonville Rancheria v. Pac. Reg'l Dir., IBIA, 0 (0); (AR000-). The IBIA did not reach the merits of the Tribe's disenrollment decision because it determined that the Superintendent and the Regional Director lacked decisionmaking authority in the circumstances presented in the appeal. Cahto Tribe, IBIA at ; (AR000). In determining that the BIA lacked jurisdiction to review the Tribe's disenrollment decision in the circumstances before the Superintendent and Regional Director, the IBIA mentioned Gene Sloan's appeals to the Regional Director in, Cahto Tribe, IBIA at & n.; (AR000), and expressly examined whether the Regional Director's and Superintendent's decisions in 00 were made in response to those appeals. The IBIA found that neither the Superintendent nor the Regional Director had addressed Mr. Sloan's appeals, but that, if the jurisdictional question were posed in the context of those appeals, "it is conceivable" that BIA would then have jurisdiction to review the disenrollment issue under C.F.R. Part. Id. On October, 0, an attorney for the Sloan/Heckers wrote to the Regional Director "on behalf of Mr Gene William Sloan of Laytonville Rancheria and the members of his family," and advised the Regional Director that the BIA had never taken action on Mr. Sloan's appeals. (AR0000-). In this regard, the attorney's October, 0 letter stated as follows: (Case No. :-cv00-geb-ggh) - -

12 Case :-cv-00-geb -GGH Document - Filed 0/0/ Page of 0 By letters of May, June, and August, Mr. Sloan filed an appeal with the then Regional Director of the BIA Pacific Region pursuant to Section of Laytonville Rancheria Ordinance No... from actions by then Chairperson Genevieve Campbell among others to disenroll him from the Cahto Tribe of Laytonville Rancheria. But Mr Sloan never received a response to his appeal and no BIA action was evidently taken to address the appeal.... As discussed in detail below, Mr. Sloan is asking that you exercise your authority under the aforesaid tribal ordinance to instruct the Tribe's General Council to place the name of Mr. Sloan and his family members back on the tribal roll. (AR0000). Four months later, when the BIA still had not acted, the Sloan/Heckers' attorney wrote to the Regional Director again. (AR0000-). By letter dated February, 0, the attorney notified the Regional Director that (AR0000). pursuant to CFR.(a)()... unless you take action on the merits of the enrollment appeal of Gene Sloan filed on his own behalf and on behalf of his extended family in within ten () days of your receipt of this request or establish a reasonable date by which you intend to make such decision, an appeal shall be filed with the Assistant Secretary for Indian Affairs in accordance with CFR Part and pursuant to CFR Part. Subsequently, after some further correspondence between the attorney, an attorney for the Tribe, and the BIA, see AR0000-; , on March, 0, the Regional Director issued the decision at issue in this case. (AR00000-). In the March, 0 decision, the Regional Director stated that he was "now acting under the authority granted... by the Tribe's Ordinance No. and under the authority granted in CFR Part, to render a decision on Mr Sloan's Appeals," (AR00000), and "pursuant to the authority delegated by Ordinance No." he instructed the Tribe's General Council "to place the Sloan/Hecker Family members' names on the Tribe membership roll immediately." (AR00000). I. Administrative Procedure Act STANDARD OF REVIEW The Administrative Procedure Act ("APA") provides that final agency action may not be set aside unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." U.S.C. 0()(A). In determining whether agency action was arbitrary or capricious, the court must consider whether the agency articulated a rational connection between the facts found (Case No. :-cv00-geb-ggh) - -

13 Case :-cv-00-geb -GGH Document - Filed 0/0/ Page of 0 and the choice made. Ariz. Cattle Growers' Ass'n v. U.S. Fish & Wildlife Svc., F. d, (th Cir. 0) (citing Pyramid Lake Paiute Tribe of Indians v. U.S. Dep't of the Navy, F.d, (th Cir.0)), and a reviewing court may not overturn the agency's action "[a]s long as the agency decision was based on a consideration of relevant factors and there is no clear error of judgment." Ariz. Cattle Growers' Ass'n, F.d at (citing Amer. Hosp. Ass'n v. NLRB, U.S. 0 ()); Citizens to Preserve Overton Park, Inc. v. Volpe, 0 U.S. 0, (); Anderson & Middleton Co. v. Salazar, No. :0-cv-00-RBL, 0 WL, at * (W.D. Wash., Aug., 0) (citations omitted) ("When a district court reviews an agency's interpretation of its own regulations, the court should defer to the agency 'unless [the agency's interpretation] is plainly erroneous or inconsistent with the regulation[s].'") This is a very narrow and highly deferential standard under which the agencies' action is presumed valid. Citizens to Preserve Overton Park, 0 U.S. at ; Motor Vehicle Mfrs. Ass'n. v. State Farm, U.S., - () (quoting Burlington Truck Lines, Inc. v. United States, U.S., ()); Indep. Acceptance Co. v. California, F.d, (th Cir. 00) (citations omitted)). "While the court's review under this standard must be 'searching and careful,' it remains 'narrow,' and the court may not substitute its judgment for that of the agency... and must uphold the agency's decision if that decision reflects reasoned decisionmaking based on evidence in the record viewed as a whole. Akee v. Office of Navajo & Hopi Indian Relocation, 0 F. Supp., (D. Ariz. ) (citing Mt. Graham Red Squirrel v. Espy, F.d, (th Cir.)). II. Summary Judgment Summary judgment is appropriate where there is no genuine dispute of material fact, and judgment should be granted as a matter of law. Fed. R. Civ. P. (c). Because claims brought under the APA are appropriately decided on the basis of an existing administrative record, without trial or discovery, such claims are properly decided on summary judgment. See B Charles Alan Wright et al., Federal Practice and Procedure (d ed. ); San Luis & Delta-Mendota Water Auth. v. Salazar, WL, at * (E.D. Cal., Dec., ) (citations omitted) (In the context of "a case involving review of a final agency action under the [APA]... summary (Case No. :-cv00-geb-ggh) - -

14 Case :-cv-00-geb -GGH Document - Filed 0/0/ Page of 0 judgment becomes the 'mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review.'"). ARGUMENT I. The Regional Director Properly Relied on C.F.R. Part as Authority for the March, 0 Decision Concerning Gene Sloan's Appeals The Tribe's claim that the Regional Director erred in relying on C.F.R. Part as giving the BIA jurisdiction to review the Tribe's disenrollment decision relies upon the premise that tribes have a fundamental, sovereign right to determine their own membership. Memorandum in Support of Cahto Tribe's Motion for Summary Judgment, Dkt. No. -, ("Pl. Mem."), at -. Although that statement is true as a general principle, it is subject to certain critical qualifications. See, e.g. Santa Clara Pueblo v. Martinez, U.S. (). The inherent sovereign powers that tribes possess may be limited by treaty, statute, or implication as the result of their dependent status. Nat'l Farmers Union Ins. Cos. v. Crow Tribe, U.S., n. (). Moreover, when a tribal constitution, other organic document, or ordinance contains provisions that require that they not be given effect until they are approved by the Department of Interior, persons aggrieved by tribal law may seek relief from the Department of Interior. Santa Clara Pueblo, U.S. at n.. Here, the Tribe's Articles of Association and its Enrollment Ordinance were reviewed and approved by the Department of the Interior. Section III(A) of the Articles of Association establishes membership criteria and provides that an enrollment ordinance shall establish procedures for membership eligibility (AR000). The Enrollment Ordinance, in turn, specifically acknowledges BIA's authority to review enrollment decisions. (AR000). The Tribe recognizes that its governing documents may have delegated some authority to the BIA for review of certain membership decisions, but it nonetheless argues that, in claiming C.F.R. Part as authority for his review of the Tribe's disenrollment decision, the Regional Director failed to construe Tribal law narrowly "in a manner that minimizes interference with tribal self government." Pl. Mem. at -. Plaintiffs' argument improperly analyzes one section of the Enrollment Ordinance apart from the rest (Case No. :-cv00-geb-ggh) - -

15 Case :-cv-00-geb -GGH Document - Filed 0/0/ Page of 0 of the Ordinance, and outside the context of the operative Tribal governing documents, including both the Articles of Association and the Enrollment Ordinance as amended. A. C.F.R. Part Gives the BIA Authority to Review the Tribe's Adverse Enrollment Decisions The BIA's regulations at C.F.R. section.(a) provide procedures for filing and processing appeals from adverse enrollment actions by the BIA, but they further provide that the regulations do not provide procedures for appeals from adverse enrollment actions by tribal committees unless an appeal to the Secretary is provided in the tribal governing document. Id..(b). The regulations then define "[a]n adverse enrollment action "as, inter alia, "[t]he rejection of an application for tribal membership or the disenrollment of a tribal member by a tribal committee as adverse enrollment action when the tribal governing document provides for an appeal of the action to the Secretary." Id..(a)() (emphasis added). Additionally, the regulations provide that, except in circumstances not applicable here, "when an appeal is made from an adverse enrollment action taken by a Superintendent or tribal committee... the Director shall make a decision on the appeal which shall be final for the Department and which shall so state in the decision." Id..(a). In the March, 0 decision, the Regional Director stated that C.F.R. Part was "[t]he appropriate Bureau of Indian Affairs regulation to review and address the adverse enrollment issues," and that sections.(b),.(a)(), and.(a) were the applicable provisions that related to his review. (AR00000). Sections.(b)() and.(a)() both expressly state the sole foundational requirement for intervention by the BIA in tribal membership decisions, which is that there must be a tribal governing document that provides for an appeal to the Secretary from such decisions. B. The Tribe's Governing Documents Provide for Appeal of an Adverse Enrollment Action to the Secretary In the March, 0 decision, the Regional Director also stated that it was "appropriate to look at the Tribe's governing document as it relates to the actions taken by the Tribe" in order to determine whether he had authority regarding the Tribe's disenrollment decision. (AR00000). In this case, the Tribe's principal governing document is the Tribe's Articles of Association (Case No. :-cv00-geb-ggh) - -

16 Case :-cv-00-geb -GGH Document - Filed 0/0/ Page of 0 (AR000-), which prescribes the establishment of its Enrollment Ordinance, or Ordinance No. (AR0000-). The Enrollment Ordinance was subsequently amended by the Tribe's Resolution No.. (AR000-). Article III.A. of the Tribe's Articles of Association establishes membership requirements for the Tribe and also sets forth certain criteria that may render persons ineligible for membership. / Section III.B. of the Articles requires that the Tribe's membership roll "shall be brought up to date annually in accordance with procedures established by an enrollment ordinance approved by the Commissioner of Indian Affairs." (AR000). Pursuant to Article III.A. of the Articles of Association, on September,, the Tribe adopted its Enrollment Ordinance "to set forth requirements and procedures to govern the enrollment of persons whose names shall be placed on the membership roll" of the Tribe. (AR0000). Subsequently in, the Tribe's General Council adopted Resolution No. amending sections and of the Enrollment Ordinance, which concern decisions about membership eligibility. In amending the Enrollment Ordinance, the Tribe found, inter alia, that the Articles of Association gave the Tribe's general council "the power '... to enact ordinances consistent with these articles of association and federal law governing future membership, loss of membership, adoption of members by the tribe,... and other necessary ordinances.'" (AR000). The Resolution then states that amendments to sections and of the Enrollment Ordinance were being adopted because the general council wished "to assume the responsibility of approving or disapproving enrollment applications under Section and all other responsibilities under Section " that previously had been performed by the Tribe's enrollment committee. Id. The Articles of Association clearly state that eligibility for membership is to be established in accordance with procedures set forth in the Enrollment Ordinance, and the Ordinance is therefore / Specifically, Article III.A.. provides that persons who otherwise meet the membership requirements set forth in the preceding subsections shall nonetheless be ineligible for membership "if they have been affiliated with any other tribe, group or band to the extent of (a) being included on a formal membership roll,... or (c) having been named as a distributee or dependent of a distributee in a reservation distribution plan." (AR000-). The Tribe claimed that this provision provided the authority for its decision to disenroll the Sloan/Heckers. (Case No. :-cv00-geb-ggh) - -

17 Case :-cv-00-geb -GGH Document - Filed 0/0/ Page of 0 the operative tribal government document concerning membership eligibility and the question of the BIA's authority related to membership eligibility. The sections of the Enrollment Ordinance that address eligibility, enrollment applications, and adverse enrollment actions are sections and, as amended by Resolution No., which provide as follows: Section - Approval and Disapproval of Applications. The general council shall, by a majority vote, approve or disapprove enrollment applications and shall instruct the chairman of the enrollment committee to provide applicants with written notification of the action taken. Section -Appeals. A person disapproved for enrollment shall be notified in writing of the reason(s) for the disapproval and informed of his right to appeal to the Area Director, Bureau of Indian Affairs, Sacramento, California, within 0 days following receipt of the rejection notice. If the Area Director cannot sustain the decision of the general council, he shall instruct the general council to place the applicant's name on the roll. The general council and/or the applicant, if the application is further denied, shall have the right to appeal to the Commissioner of Indian Affairs. Appeals from the decision of the Area Director shall be filed with the Area Director within 0 days from the date of receipt of notice of decision for forwarding to the Commissioner of Indian Affairs. (AR000; 000). Section of the Enrollment Ordinance thus sets forth the Tribe's authority regarding disapproval of membership enrollment while Section imposes a limit on the Tribe's sovereign powers with respect to membership eligibility by providing that persons disapproved for enrollment have a the right of appeal to the BIA's Area Director. Section expressly addresses generally approval and disapproval of membership applications. While not specifically using the word "disenrollment," the Articles specify that the Ordinance shall address membership eligibility, and this is the only provision of the Ordinance that could apply to a tribal decision regarding ineligibility for enrollment. If the Tribe determines that an individual is not eligible for enrollment in the Tribe, then section of the amended Ordinance applies, whereby appeal of the decision to the Regional Director is provided. Article III(B) of the Articles of Association refers to membership rolls being brought up to date annually in accordance with the Enrollment Ordinance. Pursuant to this provision in the Articles, sections and of the Enrollment Ordinance set forth the following requirements and procedures related to the Tribe's membership rolls: Section - Membership Roll Preparation. After final decisions have been rendered (Case No. :-cv00-geb-ggh) - -

18 Case :-cv-00-geb -GGH Document - Filed 0/0/ Page of 0 on applications, a roll shall be prepared with a certification as to its correctness by the Enrollment Committee, and the Area Director, Bureau of Indian Affairs. Section - Keeping Membership Roll Current. Each new Executive Committee, acting as an Enrollment Committee, shall be responsible for reviewing the membership roll and keeping the roll current by (a) striking the names of deceased persons upon receipt of documentary evidence, (b) adding the names of persons who file applications in the time period specified by the Enrollment Committee and who meet the membership requirements of this ordinance, (c) making corrections as necessary, including deleting of names of persons on the roll who were placed there erroneously, fraudulently, or otherwise incorrectly or who have relinquished membership by written request. (AR000-). These provisions relate to the Tribe's preparation and maintenance of a current, accurate membership roll based on the Tribe's determinations as to eligibility pursuant to section of the Enrollment Ordinance, or, in the case of an appeal from an adverse determination, the authority delegated by the Secretary to the BIA to make such a determinations in accordance with section. Section gives the BIA authority to certify, or approve, the membership roll that the Tribe prepares following final decisions concerning membership applications. C. The Regional Director's Review of the Tribe's Enrollment Decision under C.F.R. Part was Authorized by Tribal Law In the March, 0 decision, in analyzing whether he had authority to review the Tribe's disenrollment decision, the Regional Director stated that the Tribe's Articles of Association "does not provide for disenrollment or an appeal to [the BIA]... from tribal enrollment or disenrollment decisions," but he then cited sections,, and of the Enrollment Ordinance as amended, as addressing enrollment in, and disenrollment from, the Tribe. (AR00000-). The Regional Director further noted that section (c) of the Ordinance gives the Tribe's Executive Committee "the responsibility for making "corrections" to the roll, including the deletion of names placed "incorrectly" on the roll," and that these corrections are then subject to BIA Review pursuant to section of the Ordinance. (AR00000). In 0, in ruling on the Tribe's appeal from the BIA's February and December 00 decisions, the IBIA also found that the Articles of Association "do not provide for an appeal to the BIA from tribal enrollment or disenrollment decisions," but that the Enrollment Ordinance "provides that tribal decisions which disapprove enrollment applications may be appealed to the BIA." Cahto Tribe, IBIA at. The IBIA accordingly concluded that "it is conceivable that the BIA would (Case No. :-cv00-geb-ggh) - -

19 Case :-cv-00-geb -GGH Document - Filed 0/0/ Page of 0 have jurisdiction" over the Tribe's disenrollment decision in the context of Gene Sloan's May,, June,, and August, appeals. Id. The IBIA identified the Tribe's Enrollment Ordinance as possibly providing sufficient foundation, i.e. as being a Tribal governing document that would provide for an appeal to the Secretary in the context of Gene Sloan's appeals, and that could provide the basis for authority for the BIA's review of the Tribe's decision to disenroll the Sloan/Heckers under C.F.R. Part. The IBIA's opinion did not cite any particular section of the Enrollment Ordinance as providing the requisite foundation, but, in saying that the Ordinance "provides that tribal decisions which disapprove enrollment applications may be appealed to the BIA," it was clearly referring to section. The Tribe argues, however, that section (c) of the Enrollment Ordinance, which the Regional Director cited as providing authority for deletion of names that are found to have been incorrectly placed on the membership roll, does not contain an express provision providing for review by the BIA, and therefore, that the Regional Director essentially imported the provision providing for BIA certification in section into section and thus improperly relied on a "strained" construction of Tribal law in order to assume jurisdiction. Pl. Mem. at. C.F.R. section.(a)() provides that disenrollment of a tribal member by a tribal committee is an "adverse enrollment action," which can be appealed to the BIA, provided only that one condition is satisfied, i.e., that "the tribal governing document provides for an appeal of the action to the Secretary." C.F.R..(a)(). In contending that this condition is not satisfied here, the Tribe ignores the overall context of the Tribe's Enrollment Ordinance and section of the Ordinance. Although the BIA is obligated to construe tribal law in order to avoid unnecessary interference with a tribe's right to self-government, it is not thereby required to interpret the Tribe's governing documents through nearly as myopic a lens as the Tribe seeks to impose. "A... fundamental canon of construction is that words must be read in their context, with a view to their place in the overall regulatory scheme, and to 'fit, if possible all parts into an harmonious whole.'" United States v. Millis, F.d, (th Cir. ) (citing FDA v. Brown & Williamson Tobacco Corp., U.S., (00)). As the Tribe recognizes, Pl. Mem. at, n., canons of statutory or regulatory construction, including this principle, apply to the (Case No. :-cv00-geb-ggh) - -

20 Case :-cv-00-geb -GGH Document - Filed 0/0/ Page of 0 interpretation of Tribal governing documents. See Hopi Indian Tribe v. Comm'r, IBIA, 0- () ("[T]he organic law of the Hopi Tribe found in the Constitution authorized by statute, formulated and adopted by the tribal members and approved by the Secretary of the Interior should be construed for its ultimate meaning under the same rules as are applied in the construction of state and federal constitutions and statutes."); Menominee Tribal Enter. v. Area Dir., IBIA, 0 () (affirming BIA's previous interpretation of tribal governing documents "when those documents are read together, as they must be."). / Here, the Tribal governing documents applicable to the Regional Director's March, 0 decision are the Tribe's Articles of Association, and its Enrollment Ordinance as amended by Resolution No.. The Articles of Association clearly state that eligibility for membership is to be established in accordance with procedures set forth in the Enrollment Ordinance, and the Enrollment Ordinance accordingly sets forth rules and procedures "to govern the enrollment of persons whose names shall be placed on the membership roll" of the Tribe. (AR0000). Section of the Enrollment Ordinance sets forth the Tribe's authority regarding disapproval of membership enrollment and Section provides for an appeal to the Secretary by a person whom the Tribe disapproves for membership. Sections and of the Ordinance require the Tribe to prepare and maintain a current, accurate membership roll based on eligibility determinations pursuant to sections and of the Enrollment Ordinance and give the BIA authority to certify the accuracy of the membership roll. Contrary to the Tribe's argument, the Tribal governing documents that are relevant to Tribal decisions about membership eligibility, when read as a whole as they must be, unquestionably provide for an appeal to the Secretary for determinations by the Tribe as to eligibility or ineligibility / Ute Indian Tribe of the Uintah and Ouray Reservation v. Phoenix Area Dir., IBIA WL (), which Plaintiffs cite, Pl. Mem. at, is inapposite here. That case did not involve interpretation of related paragraphs in a Tribal governing document; rather, the issue before the IBIA was whether the inclusion of one discrete paragraph in a Tribal ordinance that concerned Tribal action for which the Tribe's Constitution required BIA approval allowed the Area Director to review the entire Ordinance, which otherwise involved actions for which BIA approval was not required. (Case No. :-cv00-geb-ggh) - -

21 Case :-cv-00-geb -GGH Document - Filed 0/0/ Page of 0 for tribal membership. Therefore, Tribal law provides the requisite foundation for the Regional Director's review of the Tribe's disenrollment decision pursuant to C.F. R. Part. D. The Regional Director's Decision Is Effective As to Gene Sloan and the Sloan/Hecker Family Members. The Tribe also argues that, even if the Regional Director had authority under C.F.R. Part to review the Tribe's disenrollment decision, the Regional Director's March, 0 decision was nevertheless contrary to that authority to the extent that it purported to provide relief and require the reinstatement of any of the Sloan/Heckers other than Gene Sloan himself. Pl. Mem. -. Under C.F.R. section.(b) an appeal from an adverse enrollment action may be on behalf of more than one person, but the name of each appellant is to be listed in the appeal. Gene Sloan's May, June, and August, appeals state that the appeals are made on behalf of Mr. Sloan and the Sloan/Hecker family members (AR000; AR0000; AR000); however none of the letters list the individuals other than Mr. Sloan on whose behalf he is appealing. Accordingly, Defendants have admitted that "the appeal did not list by name the family members who joined in the appeal as required by federal regulation." Pl. Compl., (Dkt. No. ), ; Defs.' Answer, (Dkt. No. ),. This fact, however, does not affect the validity of the Regional Director's decision. First, the names of all of the Sloan/Hecker family members affected by the Tribe's disenrollment decision are included in enclosures to one of Gene Sloan's appeals and thus were arguably incorporated in that appeal. In this regard, Mr. Sloan's June, appeal lists among the several enclosures Resolution --, and the first paragraph of the appeal letter expressly references that Resolution, stating that "[t]his letter is to formally request an appeal regarding our (Sloan/Hecker family members) removal from the Tribal Rolls of the Cahto Tribe of Laytonville Rancheria, in Resolution -- and in the original minutes of September." (AR0000). In Resolution --, which was adopted in June, the Executive Tribal Council first resolved that the Tribe was passing the resolution to "substantiat[e] the removal of the Sloan/Heckers who affiliated and placed themselves on the Hupa/Yurok Settlement roll." (AR0000). The Resolution then lists each of the Sloan/Hecker family members whom the Tribe had identified and whose (Case No. :-cv00-geb-ggh) - -

22 Case :-cv-00-geb -GGH Document - Filed 0/0/ Page of 0 removal it sought to substantiate. Id. The minutes of the September, meeting in which the Tribe's General Council made the disenrollment decision, which are also referenced in Mr. Sloan's appeal letter, also list all individuals affected by the decision. (AR000). Thus, Mr. Sloan's letter included "in his appeal," at the very least by reference, the names of all of the individuals on whose behalf the appeal was being submitted, and that information was unquestionably before the Regional Director at the time of the March, 0 decision. Moreover, in any case, the premise for the Regional Director's decision was that the Tribe's decision to disenroll the Sloan/Heckers was based on the Tribe's misinterpretation of federal law and its mis-application of Article III of its Articles of Association, which resulted in violations of tribal members' rights under federal law. (AR00000). This erroneous premise applied not only to the disenrollment of Gene Sloan himself, but equally to all of the Sloan/Hecker family members, since the disenrollment decision was a single decision by the Tribe that affected not just one person, but all of the disenrolled individuals. Thus, even if the Regional Director's March, 0 decision is upheld only as to Gene Sloan himself, the practical effect would be that the Tribe's disenrollment decision will not be recognized and, will, in fact, be nullified as to all of the Sloan/Heckers who were disenrolled. Therefore, regardless of whether any further procedural steps may be required to physically place the names of the other Sloan/Hecker family members on the Tribal membership roll, the effect of the Regional Director's March, 0 decision is that the full Tribal membership rights all of the Sloan/Heckers are recognized and restored. II. The IBIA's 0 Ruling Was Limited to the Question of the BIA's Authority for the Regional Director's and Superintendent's Decisions in 00 and Does Not Bar the Regional Director's March, 0 Decision The Tribe argues that, in its 0 decision, the IBIA ruled that the BIA did not have jurisdiction to review the Tribe's disenrollment decision, and that res judicata and collateral estoppel principles therefore precluded the Regional Director from asserting authority to review the disenrollment decision again in 0. Pl. Mem. at. The Ninth Circuit recently affirmed that res judicata applies provided that three elements are satisfied: "() an identity of claims, () a final judgment on the merits, and () privity between parties." United States v. Liquidators of European (Case No. :-cv00-geb-ggh) - -

23 Case :-cv-00-geb -GGH Document - Filed 0/0/ Page of 0 Fed. Credit Bank, --- F.d ----, WL 0 (th Cir., Jan., ) (citing Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, F.d, (th Cir. 0). Res judicata apples in cases where the final determination is, or rests upon, a jurisdictional determination, Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, U.S., 0 n. (), but its application is "limited to the question of jurisdiction." Lowe v. Acting E. Okla. Reg'l Dir., IBIA,, 0 WL (0). In this case, contrary to the Tribe's repeated insistence, the second requisite for the application of res judicata is not satisfied because there has been no final judgment on the merits concerning the BIA's jurisdiction to review the Tribe's disenrollment decision in the circumstances presented in this case, i.e., in the context of Gene Sloan's appeals from the disenrollment decision. / Res judicata therefore cannot operate as a bar to the Regional Director's March, 0 decision. See Cloud Found., Inc. v. Kempthorne, F. Supp. d 0, (D. Mont. 0) ("Res judicata cannot arise unless there is a final judgment on the merits."). A. The IBIA's 0 Determination that the BIA Lacked Jurisdiction to Consider the Tribe's Disenrollment Decision Applied Only in the Unique Circumstances Presented in that Particular Appeal. On December, 0, the IBIA issued its decision in an appeal from the Regional Director's December, 00 decision concerning the Tribe's disenrollment decision and vacated the Regional Director's decision and the underlying February, 00 decision by the Superintendent of the BIA's Central California Agency. The IBIA determined that "nothing presently before the Board shows that the BIA had any jurisdiction in the circumstances in which the issue arose, to render a decision in the Tribe's disenrollment dispute." Cahto Tribe, IBIA at. Throughout its seven-page opinion, the IBIA was consistently careful, both in its analysis of the Tribe's appeal from the Regional Director's and the Superintendent's decisions and in announcing its ultimate holding, to limit and expressly confine the reach of its holding to the / The requisites for collateral estoppel (issue preclusion) are also not satisfied here because, as Plaintiff recognizes, Pl. Mem. at, application of collateral estoppel requires, inter alia, that the issue being litigated must have been litigated in a prior proceeding and "lost as the result of a final judgment." Id. (citations omitted). (Case No. :-cv00-geb-ggh) - -

24 Case :-cv-00-geb -GGH Document - Filed 0/0/ Page of 0 circumstances presented by the specific appeal. In this regard, no less than four times in the opinion and each time it found that the Superintendent and the Regional Director had lacked authority for their decisions, the IBIA caveated its finding with limiting words. Initially, the IBIA stated as follows: The Tribe also contends that under the circumstances of the case, neither the Regional Director nor the Superintendent had any authority to issue decisions on the disenrollment issue. The Board does not reach the merits of the enrollment dispute because it agrees with the Tribe that the BIA officials lacked decision-making authority in the circumstances here." Cahto Tribe, IBIA at (emphases added). Subsequently, the IBIA considered whether the BIA might have jurisdiction under C.F.R. Part to review the Tribe's disenrollment decision in the context of Gene Sloan's separate appeals, but it found that "[f]or present purposes, it is enough to note that neither the Superintendent nor the Regional Director purported to address Sloan's appeals," and therefore concluded that, "neither the Superintendent nor the Regional Director purported to, or did, act under the authority granted in C.F.R. Part." Id. at (emphasis added). Ultimately, the IBIA concluded that Id. (emphasis added). [N]othing presently before the Board shows that the BIA had any jurisdiction in the circumstances in which the issue arose, to render a decision in the Tribe's disenrollment dispute. The express language of the IBIA's decision thus plainly contradicts Plaintiff's argument that the IBIA's decision was a final judgment on the merits concerning whether the BIA had jurisdiction in any circumstances to review the Tribe's decision to disenroll the Sloan/Heckers. The decisions that were the subjects of the appeal before the IBIA were the Agency Superintendents' February, 00 decision and the Regional Director's December, 00 decision affirming the Regional Director. Important facts that formed the context of that appeal included the following: ) to the extent that the Tribe may have given BIA authority to review its disenrollment action through the a September letter from a tribal attorney, that authority was no longer extant because the BIA had responded to the letter and stated that the disenrollment decision was an intratribal matter; ) the Agency Superintendent's February, 00 decision was not made in response to an appeal (Case No. :-cv00-geb-ggh) - -

25 Case :-cv-00-geb -GGH Document - Filed 0/0/ Page of 0 by "a person who is the subject of an adverse enrollment action" as provided for in C.F.R section., but rather was in response to a letter from a Tribal attorney requesting referral to mediation and therefore C.F.R. may not have provided jurisdiction; and ) in any case, in their respective February, 00 and December, 00 decisions, neither the Superintendent nor the Regional Director identified any authority on which their decisions were based, nor did they "purport[] to, or... act under authority granted in C.F.R. Part." Cahto Tribe, IBIA at. Additionally, although Gene Sloan's appeals were before the BIA at the time of the IBIA's ruling, neither the Superintendent's nor the Regional Director's decisions stated that they were acting on those appeals. Id. at. The IBIA then found that C.F.R. Part might nevertheless apply to give the BIA jurisdiction over the Tribe's disenrollment decision, but that because neither the Superintendent or the Regional Director had cited to that provision as authority for their decisions in 00, the IBIA found that the BIA lacked authority to render those decisions. Cahto Tribe, IBIA at. The IBIA did not find, however, that C.F.R. Part can never provide authority for the BIA to examine the Tribe's disenrollment decision in other circumstances. Indeed, the 0 decision expressly leaves open the possibility that, "[d]epending upon how C.F.R..(a)() and the Tribe's enrollment ordinance are interpreted, it is conceivable that BIA would have jurisdiction over the issue here in the context of the Sloan's appeals." Id. at. This is precisely the context in which the Tribe's disenrollment decision was presented to the BIA in 0 and which formed the basis for the Regional Director's decision at issue in this case. B. The Regional Director Issued the March, 0 Decision as the Result of His Proper Consideration of Gene Sloan's Appeals to the BIA. Plaintiffs further argue that the Regional Director's decision was arbitrary and capricious because it was issued some twelve or thirteen years after the Tribe's September decision to disenroll the Sloan/Heckers and six years after the IBIA ruled that the BIA Superintendent and Regional Director's 00 decisions concerning the Tribe's disenrollment decision were issued without valid authority. The Tribe contends that the BIA did nothing with respect to the Tribe's disenrollment decision for six years after the IBIA's decision in 0 and took no steps to address Gene Sloan's (Case No. :-cv00-geb-ggh) - -

26 Case :-cv-00-geb -GGH Document - Filed 0/0/ Page of 0 pending appeals, and that, during that period, it engaged in government-to-government relations with the Tribe, until March, 0, when it suddenly changed its position and the Regional Director exercised his authority to consider the disenrollment decision again. The Tribe's argument focuses only on three points along a timeline that spans nearly fourteen years, i.e., the disenrollment decision in September, the IBIA's ruling in December 0, and the Regional Director's decision in March 0. The Tribe thus conflates the timeline leading to the Regional Director's March, 0 decision and ignores other crucial dates and details, and evidence in the record that provides a complete explanation and reflects the reasoned basis for the Regional Director's decision. This evidence shows that the Regional Director did not, as the Tribe contends, suddenly "come to the conclusion that the appeals made by Gene Sloan in were still pending," see Pl. Mem. at, and that did he did not arbitrarily "reverse[ ] course" one day after six years of silence or seeming acquiescence. Id. at -. Rather, the Regional Director acted in March 0 in response to letters from the Sloan/Heckers' attorney, (AR0000-; 0000-; ), and also in response to the Sloan/Heckers' filing of a federal lawsuit in December 0. See AR0000. As set forth above, in a letter dated October, 0, the Sloan's attorney called the Regional Director's attention to the fact that Gene Sloan's May, June, and August, appeals to the BIA concerning the Tribe's disenrollment decisions were still pending but that Mr. Sloan had "never received a response to his appeal and no BIA action was evidently taken to address the appeal." (AR0000). When the Regional Director did not respond to the October, 0 letter, Mr. Sloan's attorney wrote to the Regional Director again on February, 0, this time notifying him that, in accordance with the procedures for appeals from BIA inaction as set forth in C.F.R..(a)(), unless the Regional Director took action on Mr. Sloan's appeals, or, within ten days of receipt of the letter, established a reasonable date by which he intended to make such decision, an appeal would be filed with the Assistant Secretary - Indian Affairs. (AR0000). Pursuant to C.F.R.., a person whose interests have been adversely affected by the failure of a BIA official to act on a request to the official can make such inaction the subject of appeal by (Case No. :-cv00-geb-ggh) - -