Alto v. Jewell

ALBERT P. ALTO, et al., Plaintiffs, v. SALLY JEWELL, Secretary of the United States Department of the Interior, et al., Defendants.

Case No. 11-cv-2276-BAS(BLM)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

September 30, 2015

ORDER:

(1) DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT; AND

(2) GRANTING DEFENDANTS' CROSS-MOTION FOR SUMMARY JUDGMENT

[ECF Nos. 103, 110]

On September 30, 2011, Plaintiffs commenced this declaratory and injunctive-relief action, seeking judicial review of a decision issued by the Assistant Secretary - Indian Affairs ("Assistant Secretary" or "AS-IA") under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A), against the Secretary of the Department of the Interior and other federal officials.¹ Each defendant is sued in his or her respective official capacity. The complaint was amended once with the First Amended Complaint("FAC") being the operative complaint. This action arises from the approval of a recommendation from the Enrollment Committee of the San Pasqual Band of Diegueño Mission Indians ("San Pasqual Band" or "Band") to disenroll the named plaintiffs from the Band's membership roll.² Now pending before the Court are the parties' cross-motions for summary judgment.

Having reviewed the papers submitted and oral argument from both parties, the Court DENIES Plaintiffs' motion for summary judgment, and GRANTS Defendants' cross-motion for summary judgment.

I. BACKGROUND³

"For nearly two centuries now, [federal law has] recognized Indian tribes as 'distinct, independent political communities,' qualified to exercise many of the powers and prerogatives of self-government." Plains Commerce Bank v. Long Family & Cattle Co., 554 U.S. 316, 327 (2008) (citations omitted) (quoting Worcester v. Georgia, 6 Pet. 515, 559 (1832)) (citing United States v. Wheeler, 435 U.S. 313, 322-23 (1978)). The "sovereignty that the Indian tribes retain is of a unique and limited character."Wheeler, 435 U.S. at 323. "[T]ribes are subject to plenary control by Congress," but they also remain "separate sovereigns pre-existing the Constitution." Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978); see United States v. Lara, 541 U.S. 193, 200 (2004). "Thus, unless and 'until Congress acts, the tribes retain' their historic sovereign authority." Michigan v. Bay Mills Indian Cmty., — U.S. —, 134 S. Ct. 2024, 2030 (2014) (citing Wheeler, 435 U.S. at 323).

"As part of their residual sovereignty, tribes retain power to legislate and to tax activities on the reservation, including certain activities by nonmembers, to determine tribal membership, and to regulate domestic relations among members." Plains Commerce Bank, 554 U.S. at 327 (citations omitted). "An Indian tribe has the power to define membership as it chooses, subject to the plenary power of Congress." Williams v. Gover, 490 F.3d 785, 789 (9th Cir. 2007). "A tribe's right to define its own membership for tribal purposes has long been recognized as central to its existence as an independent political community." Santa Clara Pueblo, 436 U.S. at 72 n.32.

A. The San Pasqual Band's Organization⁴

Following a tumultuous history with white settlers dating back to the 1850s, "[i]n 1954 the descendants of the San Pasqual Band realized that they would lose . . . [a] small piece of mislocated reservation land unless they organized to reclaim the reservation" that was initially created by President Ulysses S. Grant's executive order in 1870. (AR 1138-39.) "The Indians were required by the [Bureau of Indian Affairs] to develop proof of their descent from the original San Pasqual members." (AR 1139.)

On July 29, 1959, the Department of the Interior published a notice of Proposed Rulemaking, setting out regulations intended to "govern the preparation of a roll of the San Pasqual Band of Mission Indians in California." (AR 1139.) The final rule wascodified at 25 C.F.R. Part 48, published March 2, 1960. (Id.) See also 25 Fed. Reg. 1829 (Mar. 2, 1960) (codified at 25 C.F.R. pt. 48). These regulations "directed that a person who was alive on January 1, 1959, qualified for membership in the band if that person was named as a member of the Band on the 1910 San Pasqual census, or descended from a person on the 1910 census and possessed at least 1/8 blood of the band, or was able to furnish proof that he or she was 1/8 or more blood of the Band." (AR 1140.)

Under the regulations promulgated in Part 48, an Enrollment Committee ("EC") was formed, "consisting of three primary and two alternate members, all of whom were shown on a 1910 Bureau of Indian Affairs (BIA) census of San Pasqual Indians." (AR 1140.) The regulations provided application and review procedures for any individuals interested in applying for membership in the San Pasqual Band. (Id.) Though the BIA's Field Representative accepted the applications, the Enrollment Committee reviewed applications and made recommendations that ultimately ended up with the Area Director. (Id.) "The Director was authorized by the Regulations to determine whether a person is qualified for membership." (Id.) Any appeals would then go to the Commissioner and the Secretary of the Interior. (Id.) "Thus, under the regulations, the authority to issue a final decision respecting membership in the Band was vested in officials in the Department of the Interior."⁵ (Id.) The implementation of the regulations resulted in the creation of a membership roll for the San Pasqual Band in 1966. (Id.)

In November 1970, the Band voted on its Constitution, which was subsequently approved by the AS-IA in January 1971. (AR 1140; see also AR 1599-1600.) Article III of the San Pasqual Band's Constitution provided the following:

Section 1. Membership shall consist of those living persons whose names appear on the approved Roll of October 5, 1966, according to Title 25, Code of Federal Regulations, Part 48.1 through 48.15.

Sec[tion] 2. All membership in the band shall be approved according to the Code of Federal Regulations, Title 25, Part 48.1 through 48.15 and an enrollment ordinance which shall be approved by the Secretary of the Interior.

(AR 1591; see also AR 1140.) "The plain language of the Band's Constitution incorporates the Part 48 regulations as published in 1960 as the controlling law of the Band." (AR 1141; see also AR 1591.)

In November 1983, the United States Claims Court issued an award to the San Pasqual Band in a compromise settlement. (AR 1141.) Funds were subsequently appropriated by Congress to satisfy the award. (Id.)

In 1987, the regulations were rewritten to assist in the distribution of the judgment funds by bringing the membership roll current. (AR 1141, 1573-77.) The final rule was codified in 25 C.F.R. Part 76, published August 20, 1987. 52 Fed. Reg. 31391 (Aug. 20, 1987) (codified at 25 C.F.R. pt. 76). The revised regulations, Part 76, which became effective September 1987, included the following summary description:

In accordance with a judgment plan . . . prepared pursuant to the Indian Judgment Funds Distribution Act, as amended, a portion of the judgment funds is to be distributed on a per capita basis to all tribal members living on April 27, 1985. The revision to the regulations will provide procedures, including a deadline for filing applications, to govern the preparation of a membership roll of the San Pasqual Band as of April 27, 1985, which will serve as the basis for the per capita distribution of judgment funds.

(AR 1573.) This revision was later removed in June 1996 because "[t]he purpose for which these rules were promulgated has been fulfilled and the rules are no longer required." 61 Fed. Reg. 27780 (June 3, 1996). "Members of the San Pasqual Band have been enrolled as required in satisfaction of the judgments of the United States Claims Court docket 80-A." Id.

B. Marcus Alto, Sr. and His Descendants' Enrollment

Plaintiffs are descendants of Marcus R. Alto, Sr. Neither Marcus Alto, Sr. nor his descendants were included on the 1966 membership roll. (AR 1140.) But on November 15, 1987, he and several of his descendants did apply for enrollment under the 1987 regulations. (AR 1141.) "His descendants claim[ed] to be eligible for enrollment in the Band based on the alleged biological link that Marcus Sr. provides to Maria Duro Alto and Jose Alto[.]" (Id.) Maria Duro Alto⁶ and Jose Alto are identified as Marcus Alto, Sr.'s parents, and it is uncontested that both parents were full-blood members of the Band. (AR 1141-42, 1516-18.)

Marcus Alto, Sr. died on June 16, 1988, before his enrollment application had been decided. (AR 1141, 1516-18.) However, the BIA continued processing his descendants' applications, and in May 1991, the BIA Superintendent notified the EC of his determination that Marcus Alto, Sr.'s descendants were eligible for enrollment in the San Pasqual Band. (AR 1141.) The Band challenged that determination in favor of Marcus Alto, Sr.'s descendants, which was ultimately appealed to the Assistant Secretary - Indian Affairs, who at the time was Ada E. Deer. (Id.; see also AR 752-54.)

On April 10, 1995, in a final decision ("1995 Decision") from the Department of the Interior, the Assistant Secretary affirmed the Regional Director's finding from January 1994 that Marcus Alto, Sr. was full-blooded Diegueño Indian, upheld the enrollment of Marcus Alto, Sr. and his descendants, and found that they are eligible for inclusion on the Band's distribution roll. (AR 1141-42, 1516-18.)

C. The Assistant Secretary's 2011 Decision

A little over a decade later, Marcus Alto, Sr. and his descendants' enrollment status once again came to the forefront. In 2007, Marcus Alto, Sr.'s descendants' qualification for enrollment was challenged, supported with purportedly new evidence. (AR 1142.) The EC reopened the matter of Marcus Alto, Sr.'s ancestry, and Marcus Alto, Sr.'s descendants were provided with an opportunity to rebut the new evidence. (Id.) Relying on the 1960 regulations permitting disenrollment when the...