Timbisha Shoshone Tribe v. U.S. Department of the Interior

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TIMBISHA SHOSHONE TRIBE; JOSEPH No. 13-16182

KENNEDY; ANGELA BOLAND; GRACE

GOAD; ERICK MASON; HILLARY D.C. No.

FRANK; MADELINE ESTEVES; 2:11-cv-00995-

PAULINE ESTEVES, MCE-DAD

Plaintiffs-Appellants,

v. OPINION

U.S. DEPARTMENT OF THE INTERIOR;

LARRY ECHO HAWK; AMY

DUTSCHKE; TROY BURDICK;

MARGARET CORTEZ; WILLIAM

EDDY; GEORGE GHOLSON; CLYDE

NICHOLS; EARL FRANK; DONALD

LAVERDUE; BUREAU OF INDIAN

AFFAIRS,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of California

Morrison C. England, Jr., Chief District Judge, Presiding

Argued and Submitted January 4, 2016

San Francisco, California

Filed May 27, 2016

2 TIMBISHA SHOSHONE TRIBE V. USDOI

Before: J. Clifford Wallace and Diarmuid F. O’Scannlain,

Circuit Judges and Marilyn L. Huff,* District Judge.

Opinion by Judge Wallace

SUMMARY**

Mootness / Tribal Affairs

The panel dismissed, as moot, an appeal from the district

court’s dismissal of a case challenging the Department of the

Interior’s recognition of the election results for leadership

authority over the Timbisha Shoshone Tribe.

The panel held that the Tribe’s recent adoption of a new

constitution, which overhauled tribal membership

requirements, mooted the appeal because there was no chance

that a remand to the Bureau of Indian Affairs would make

any difference whatsoever in the election results.

COUNSEL

Jeffrey R. Keohane (argued), George Forman, Jay B. Shapiro,

and Kimberly A. Cluff, San Rafael, California, for Plaintiffs-

Appellants.

*

The Honorable Marilyn L. Huff, District Judge for the U.S. District

Court for the Southern District of California, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

TIMBISHA SHOSHONE TRIBE V. USDOI 3

Mary Gabrielle Sprague (argued), Katherine J. Barton, and

John C. Cruden, Assistant Attorney General, Appellate

Section, Environment & Natural Resources Division, United

States Department of Justice, Washington, D.C., for Federal

Defendants-Appellees.

James M. Birkelund (argued), Law Offices of James

Birkelund, San Francisco, California; Mark A. Levitan,

Sonora, California, for Tribal Council Defendants-Appellees.

OPINION

WALLACE, Senior Circuit Judge:

Since at least 2002, several competing factions have vied

for leadership authority over the Timbisha Shoshone Tribe.

Faced with these competing claims of authority, the

Department of Interior (Department) reviewed the electoral

history and recognized one of the factions for a limited time

until the Tribe could hold a special election to choose new

leadership. After the Department’s decision, the Tribe

conducted a special election resulting in new leadership. The

Department recognized the election’s result because it

concluded that the Tribe conducted the election in compliance

with tribal law.

The defeated faction argues that the Department erred in

several of its decisions by failing to comply with the

Administrative Procedures Act, 5 U.S.C. § 500–596, in a

variety of ways. We need take no position on those issues,

however, if we conclude this appeal is now moot. We

conclude that it is. Therefore, we lack jurisdiction to rule on

the merits and, accordingly, dismiss this appeal.

4 TIMBISHA SHOSHONE TRIBE V. USDOI

I.

For many Indian tribes, federal recognition is of great

importance because “[s]uch status is a ‘prerequisite to the

protection, services, and benefits of the Federal government

available to Indian tribes by virtue of their status as tribes.’”

AMERICAN INDIAN LAW DESKBOOK § 2:6 (quoting 25 C.F.R.

§ 83.2 (1994)). For instance, federally recognized tribes may

receive “assistance for such purposes as corrections, child

welfare, education, and fish and wildlife and environmental

programs.” Id. Moreover, only federally recognized tribes

may operate gambling facilities under the federal Indian

Gaming Regulatory Act. See Big Lagoon Rancheria v.

California, 789 F.3d 947, 949–50 (9th Cir. 2015) (en banc).

The Timbisha Shoshone Tribe received federal

recognition as a sovereign Indian nation in 1983. See

Timbisha Shoshone Homeland Act, Pub. L. No. 106-423, 114

Stat. 1875 (2000). The Tribe’s organizational document is a

written constitution, which allocates governmental power

among three distinct branches: a General Council, a Tribal

Council, and a Tribal Judiciary.1 The General Council is the

Tribe’s supreme governing body but has delegated some of

its authority to the Tribal Council. The Tribal Council

consists of five people, each of whom holds office for two

years. The Tribe holds general elections for the Tribal

Council every year in November, but the Tribal Council

officers’ terms of office are staggered so that not every seat

1

The Tribe adopted a new constitution in 2014 and it contains some

significant changes from the earlier version. But in describing the

background of this case, we refer to the pre-2014 constitution because that

was the document under which the parties operated during the relevant

background events.

TIMBISHA SHOSHONE TRIBE V. USDOI 5

is up for election every year. A Tribal Council seat may also

become vacant if a member resigns, is removed from office,

or is recalled from office.

Various rival factions within the Tribe have been vying

for control over the Tribal Council for over a decade. See,

e.g., Timbisha Shoshone Tribe v. U.S. Dep’t of the Interior,

No. 2:11-cv-00995-MCE-DAD, 2011 WL 1883862 (E.D.

Cal. May 16, 2011); Timbisha Shoshone Tribe v. Bureau of

Indian Affairs, No. CIVS-03-404 WBS/GGH, 2003 WL

25897083 (E.D. Cal. April 10, 2003). Since the inception of

these leadership disputes, Joseph Kennedy had headed one

faction, and we refer generally to the various constituents he

has led over the years as the Kennedy Group.

While it is not the start of the factional disputes, we begin

our discussion of this case with the Tribe’s November 2006

elections, where Kennedy was elected Chairman of the Tribal

Council. At an August 2007 Tribal Council meeting,

Kennedy charged two other Council officers with committing

misconduct while in office. The two charged officers, along

with another Council officer, then left the meeting. These

three were members of a group we refer to generally as the

Beaman Group. After the Beaman Group members left,

Kennedy and the other remaining Council officer purported

to fill one of the vacant seats. Meanwhile, the Beaman Group

later adopted resolutions purporting to act as the Tribe’s

leadership.

At the time of the next annual Tribal Council election in

November 2007, both the Kennedy Group and the Beaman

Group held elections, which unsurprisingly resulted in each

group winning its own election. Troy Burdick, the

Superintendent of the Central California Agency of the

6 TIMBISHA SHOSHONE TRIBE V. USDOI

Bureau of Indian Affairs (which is an agency within the

Department of Interior), initially refused to recognize either

election, but he later reversed course and recognized the

Kennedy Group’s election results. Superintendent Burdick

based the reversal on a January 2008 General Council

meeting that Kennedy organized in which the General

Council adopted resolutions purporting to ratify the results of

the Kennedy Group’s election. The Beaman Group appealed

Superintendent Burdick’s decision.

The newly recognized Kennedy Group later reviewed the

Tribe’s membership rolls and disenrolled 74 members who

allegedly did not meet the membership criteria. George

Gholson was one of those disenrolled members. Around the

same time the Kennedy Group was performing its

membership-roll review, Gholson organized a special

meeting of the General Council, which ended with Kennedy

being recalled as Chairman of the Tribal Council and

Gholson being placed in the position. Shortly thereafter,

Superintendent Burdick issued a decision recognizing

Gholson as the Council’s Chairman. Yet, less than a month

later, Superintendent Burdick changed course and issued a

decision recognizing the November 2006 Tribal Council.

In February 2009, Dale Morris, the Regional Director of

the Bureau of Indian Affairs took up the Beaman Group’s

appeal of Superintendent Burdick’s decision recognizing the

Kennedy Group’s November 2007 election. Director Morris

reversed the decision, concluding that the resolutions adopted

by the General Council in January 2008 exceeded its

authority and violated principles of due process. Director

Morris declined to recognize the Kennedy Group, the

Beaman Group, or the Gholson Group, and decided to

TIMBISHA SHOSHONE TRIBE V. USDOI 7

recognize instead the Tribal Council as it was constituted

following the November 2006 elections.

The Kennedy Group appealed from Director Morris’s

decision to then-Assistant Secretary of the Bureau of Indian

Affairs, Larry Echo Hawk. Secretary Echo Hawk issued a

decision on March 1, 2011, in which he made two holdings.

First, he affirmed Director Morris’s decision rejecting the

General Council’s January 2008 resolutions that purportedly

ratified the Kennedy Group’s November 2007 Tribal Council

election. Secretary Echo Hawk held that those resolutions

contravened the Tribe’s constitution because the General

Council attempted to replace Beaman as a member of the

Tribal Council when Beaman had not resigned, been recalled,

or removed from office. Second, given that there was no

validly elected Tribal Council, Secretary Echo Hawk

recognized the Gholson Group as the Tribal Council “for the

limited time of 120 days . . . for the limited purpose of

carrying out essential government-to-government relations

and holding a special election that complies with tribal law.”

He supported his recognition of the Gholson Group rather

than the Kennedy Group on two grounds: (1) more votes were

cast in the Gholson Group election than the Kennedy Group

election (137 to 74), and (2) the Kennedy Group’s exclusion

of the 74 members it disenrolled from voting rendered its

election “facially flawed” because the disenrollments did not

comply with either tribal law or federal law.

Following Secretary Echo Hawk’s decision, the Gholson

Group held a Tribal Council election. Gholson won election

as the Council’s Chairperson, receiving 159 votes, while

Kennedy received only 60. The Tribe then asked the

Department to recognize the election results. Assistant

Secretary Echo Hawk did so by issuing a second decision in

8 TIMBISHA SHOSHONE TRIBE V. USDOI

which he concluded that “the special election reflects the will

of the Tribe.”

The Kennedy Group challenged Secretary Echo Hawk’s

decisions in federal district court, arguing that Secretary Echo

Hawk’s reliance on certain principles of administrative law

was incorrect in a variety of ways. As a remedy, the Kennedy

Group did not ask the district court to place it in power, but

instead asked the district court to remand Secretary Echo

Hawk’s decisions “for further proceedings consistent with

federal law.”

The district court dismissed the Kennedy Group’s

complaint, concluding that, under Rule 19 of the Federal

Rules of Civil Procedure, the Tribe and the 2011-elected

Council members (all of whom were members of the Gholson

Group) were “indispensable parties that enjoy sovereign

immunity.” Essentially, the district court ruled that for the

Kennedy Group to present its claims, it needed to name both

the Tribe and the Tribal Council members as defendants (in

addition to the Department). But because neither had agreed

to waive sovereign immunity, they could not be joined as

defendants, and thus the court found it necessary to dismiss

the action.

Following the district court’s dismissal of the Kennedy

Group’s action on April 9, 2013, the Tribe adopted a new

constitution in 2014. The new constitution made changes to

the original document, but most importantly for our purposes,

the new constitution changes the criteria for membership in

the Tribe. Under the new constitution, a person is a member

of the Tribe if he or she meets any of the following criteria:

(a) is on a certain 1936 list of people with some Shoshone

blood, (b) is on a 1978 genealogy roll, (c) is a lineal

TIMBISHA SHOSHONE TRIBE V. USDOI 9

descendant of anyone qualifying under subsections (a) or (b),

and is at least one-fourth Indian (one-sixteenth of which must

be Shoshone blood), or (d) persons of Indian blood who are

adopted. It is undisputed that the 74 people that the Kennedy

Group disenrolled in 2008 would qualify as Tribal members

under the new constitution. The new constitution was

submitted for a Tribal vote by the Bureau of Indian Affairs.

The vote was 63 in favor of the new constitution, 22 against,

and 1 spoiled ballot. In certifying the election results, the

Bureau observed that even if all the votes of members that

Kennedy Group disputed as qualifying for membership were

ignored, the yes votes would have still won a majority. The

new constitution is still in force and the Kennedy group has

conceded that “the 2014 Constitution is not before” our panel.

II.

Before addressing the merits of the Kennedy Group’s

arguments, we must assure ourselves that we have

jurisdiction. Bender v. Williamsport Area Sch. Dist., 475 U.S.

534, 541 (1986) (“[E]very federal appellate court has a

special obligation to satisfy itself . . . of its own jurisdiction.”

(internal quotation marks omitted)). Our obligation to do so

stems from Article III of the Constitution, which confines

“[t]he judicial Power” to deciding cases and controversies.

U.S. CONST. art. III, § 2, cl. 1.

The case or controversy requirement is not a rule that

applies only at the outset of litigation. Instead, the Supreme

Court has explained that “[t]he rule in federal cases is that an

actual controversy must be extant at all stages of review, not

merely at the time the complaint is filed.” Steffel v.

Thompson, 415 U.S. 452, 459 n.10 (1974). Where an actual

controversy does not persist throughout litigation, “[a] case

10 TIMBISHA SHOSHONE TRIBE V. USDOI

becomes moot.” Already, LLC v. Nike, Inc., 133 S. Ct. 721,

726 (2013); Cook Inlet Treaty Tribes v. Shalala, 166 F.3d

986, 989 (9th Cir. 1999). The mootness doctrine does not turn

on whether the plaintiff continues to believe that some

unlawful conduct occurred. Already, LLC, 133 S. Ct. at 727

(explaining that a case may still be moot regardless of “how

vehemently the parties continue to dispute the lawfulness of

the conduct that precipitated the lawsuit”). Rather, “the case

is moot if the dispute ‘is no longer embedded in any actual

controversy about the plaintiffs’ particular legal rights.’” Id.

(quoting Alvarez v. Smith, 558 U.S. 87, 93 (2009)). Thus, we

have held that “[i]f there is no longer a possibility that an

appellant can obtain relief for his claim, that claim is moot

and must be dismissed for lack of jurisdiction.” Ruvalcaba v.

City of Los Angeles, 167 F.3d 514, 521 (9th Cir. 1999); see

Chafin v. Chafin, 133 S. Ct. 1017, 1023 (2013) (framing the

mootness inquiry by asking whether it has become

“impossible for a court to grant any effectual relief whatever

to the prevailing party” (internal quotation marks omitted)).

In cases where a plaintiff seeks declaratory relief, such as

this one, the test for mootness is “whether the fact alleged,

under all the circumstances, show that there is a substantial

controversy, between parties having adverse legal interests,

of sufficient immediacy and reality to warrant the issuance of

a declaratory judgment.” Gator.com Corp. v. L.L. Bean, Inc.,

398 F.3d 1125, 1129 (9th Cir. 2005) (en banc) (internal

quotation marks omitted). Or, “[s]tated another way, the

central question before us is whether changes in the

circumstances that prevailed at the beginning of litigation

have forestalled any occasion for meaningful relief.” Id.

(internal quotation marks omitted).

TIMBISHA SHOSHONE TRIBE V. USDOI 11

With that legal background, we now examine whether an

“actual controversy” remains in this case. The Department

argues that the Tribe’s adoption of a new constitution in 2014

moots this appeal.

As explained above, in 2014 the Bureau of Indian Affairs

conducted an election on a proposed constitution for the

Tribe. The proposed constitution obtained a substantial

majority of favorable votes (63 in favor versus only 22

opposed). Given the Kennedy Group’s concession that the

validity of the new constitution is not at issue in this case, we

assume its validity. See Reply Br. at 5; Oral Arg. at 5:35

(stating that the Kennedy Group concedes that “the facts of

the constitution are not before this court”). Since the new

constitution remains in effect, the issue then is whether it

precludes us from being able to provide the Kennedy Group

with “meaningful relief,” thus rendering the case moot.

Gator.com Corp., 398 F.3d at 1129.

Secretary Echo Hawk’s first decision hinged, in part, on

his conclusion that “the [2007] Kennedy election was facially

flawed by its exclusion of certain Tribe members.” He

explained that any decision to “bar[]” valid members “from

voting fatally invalidates an election”; the Kennedy Group

does not dispute this legal premise. This flaw led Secretary

Echo Hawk to recognize the Gholson Group for the limited

purpose of holding a special election. The Kennedy Group

has repeatedly argued that Secretary Echo Hawk’s analysis on

this point was mistaken because, it asserts, the 74 Tribe

members the Group excluded at its November 2007 election

were not actually members of the Tribe under the prior

constitution. But this argument misses the point. Even if we

assume that the Kennedy Group was correct that the 74

excluded individuals failed to meet the Tribe’s membership

12 TIMBISHA SHOSHONE TRIBE V. USDOI

qualifications (and so assume that Secretary Echo Hawk erred

in reasoning the opposite), the new constitution overhauled

those membership requirements. Under the new constitution’s

membership framework, there is no dispute that the 74

disenrolled individuals qualify for Tribal membership. Thus,

were we to remand for the Bureau of Indian Affairs to

reconsider its decision, there would be no possibility

whatsoever that the agency would change its reasoning as to

the disenrolled individuals because those people clearly

qualify for Tribal membership under the new constitution.

The Kennedy Group argues that the reasoning we apply

above is “circular” because it allows purportedly ineligible

members to vote on a new constitution which retroactively

cures their membership defects. In short, the group argues

that the new constitution is ineffective because unqualified

individuals voted in favor of it, so it cannot possibly moot

this case. But this argument ignores the fact that the new

constitution received a substantial majority of votes in its

favor, the Bureau of Indian Affairs certified it, and the

Kennedy Group has conceded that its validity “is not before”

us. Given all of that, on what authority can we decide the new

constitution is invalid? Our case law certainly does not

support doing so, since we have on many occasions cautioned

against intermeddling in tribal affairs. See, e.g., Williams v.

Gover, 490 F.3d 785, 791 (9th Cir. 2007) (observing that a

prior case and “its predecessors establish that [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” (internal quotation marks omitted)).

Moreover, as the Bureau of Indian Affairs observed, even if

we accepted the Kennedy Group’s argument that the

unqualified individuals who voted in favor of the new

TIMBISHA SHOSHONE TRIBE V. USDOI 13

constitution should not have been able to vote, the new

constitution still would have won a majority.

Thus, this is a moot case because a remand by us to the

Bureau of Indian Affairs to reconsider Secretary Echo

Hawk’s decisions would serve no purpose. Even if the agency

disagreed with Secretary Echo Hawk’s reasoning under the

prior constitution, it would have to apply the membership

criteria in the new constitution, which would lead it to

conclude that the Kennedy Group’s exclusion of 74 members

from voting in its November 2007 election rendered the

election unenforceable.

Because we conclude that the Tribe’s recent adoption of

a new constitution moots this appeal, we will not reach the

Department’s alternative arguments, including that

intervening tribal elections moot this appeal and that the

Kennedy Group lacks standing to challenge the Department

of Interior’s so-called “Rollback Rule.” Further, because this

appeal is now moot, we cannot address the Kennedy Group’s

argument that the district court abused its discretion in

dismissing the Group’s action under Rule 19 of the Federal

Rules of Civil Procedure.

III.

Article III of the Constitution limits federal courts to

deciding live cases or controversies. Under that constitutional

mandate, we must dismiss a case if “there is no longer a

possibility that an appellant can obtain relief for his claim.”

Ruvalcaba, 167 F.3d at 521. That rule forecloses our ability

14 TIMBISHA SHOSHONE TRIBE V. USDOI

to reach the merits in this case, because there is no chance

that a remand to the Bureau of Indian Affairs would make

any difference whatsoever.

APPEAL DISMISSED.