Tiffany Aguayo v. S.M.R. Jewell

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TIFFANY L. AGUAYO, (HAYES); No. 14-56909

KAREN DURO, (RENIO); ROSA

ESTRADA; CHRISTIAN GRIFFITH; D.C. No.

JUSTIN GRIFFITH; NATASHA 3:13-cv-01435-

GRIFFITH; CAMERON C. HAYES; BAS-KSC

PAMELA KENNEDY; ELIZABETH

MARTINEZ; JACQUELINE

MCWHORTER; DAWN MOJADO; OPINION

PRISCILLA MOJADO; MICHAEL

PERALTA; JOHNNY POLING; JESSICA

RENTERIA; ADAM TRUJILLO;

ANDREA TRUJILLO; ANNALEE H.

TRUJILLO, (YANEZ); BRADLEY L.

TRUJILLO, JR.; BRANDON M.

TRUJILLO, SR.; BRIAN A. TRUJILLO,

II; CHARLES TRUJILLO; DONALD

TRUJILLO; JENNIFER TRUJILLO; JOHN

A. TRUJILLO; JONATHAN TRUJILLO;

JOSHUA E. TRUJILLO; KRISTINE

TRUJILLO; LAURA J. TRUJILLO;

LESLIE TRUJILLO; MARLENE

TRUJILLO; RANDOLPH W. TRUJILLO,

JR.; SHALAH M. TRUJILLO; TINA

TRUJILLO-POULIN; ANNETTE E.

WALSH; BRENDA J. WALSH; ERIC J.

WALSH; PATRICIA A. WALSH;

STEPHANIE S. WALSH; JUANITA

LUNA; LANISE LUNA; SHALEA LUNA;

ANTHONY LUNATRUJILLO; BRIAN

2 AGUAYO V. JEWELL

TRUJILLO, SR.; JACOB TRUJILLO;

MIRIAM TRUJILLO; RACHEL ELLIS-

TRUJILLO; REBEKAH TRUJILLO;

RICHARD TRUJILLO; MICHELLE

TRUJILLO; BRIANNA MENDOA;

ANGEL MORALES; DESTINY PENA;

MARI PENA; ROGELIO PENA;

GERONIMO POLING; KRISTA POLING;

KRISTOPHER POLING; CHEYENNE

TRUJILLO; PETER TRUJILLO, JR.;

BRANDON TRUJILLO, JR.; FEATHER

TRUJILLO; MUKIKMAL TRUJILLO;

TASHPA TRUJILLO; KAWISH

TRUJILLO; SUSANNE WALSH; JOSEPH

RAVAGO; KALEY RAVAGO,

Plaintiffs-Appellants,

v.

S.M.R. JEWELL, Secretary,

Department of the Interior; KEVIN K.

WASHBURN, Esquire, Assistant

Secretary, Department of the Interior

- Indian Affairs; AMY DUTSCHKE,

Regional Director, Department of

the Interior; ROBERT EBEN,

Superintendent of the Department of

Indian Affairs, Southern California

Agency; DOES, 1 THROUGH 10,

Defendants-Appellees.

AGUAYO V. JEWELL 3

Appeal from the United States District Court

for the Southern District of California

Cynthia A. Bashant, District Judge, Presiding

Argued and Submitted February 5, 2016

Pasadena, California

Filed July 8, 2016

Before: STEPHEN REINHARDT, RICHARD A. PAEZ,

and MILAN D. SMITH, JR., Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

SUMMARY*

Indian Law

Affirming the district court’s summary judgment in favor

of the defendants, the panel held that the Bureau of Indian

Affairs did not act arbitrarily and capriciously when it

concluded that, according to tribal law, it had no authority to

intervene in a tribal membership dispute, in which more than

150 people were disenrolled from the Pala Band of Mission

Indians.

The panel held that it had jurisdiction to review the BIA’s

final agency action under the Administrative Procedures Act.

*

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

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

4 AGUAYO V. JEWELL

The panel held that the BIA was not arbitrary and

capricious in concluding that the Pala Band’s 1997

Constitution and 2009 enrollment ordinance supplanted the

Band’s Articles of Association and 1961 membership

ordinance. Accordingly, the BIA had only an advisory role

and could not compel the Band’s Executive Committee to re-

enroll the plaintiffs. The panel rejected plaintiffs’ argument

that the BIA had an independent trust duty to protect them

from unjust disenrollment.

COUNSEL

Tracy L. Emblem (argued), Escondido, California, for

Plaintiffs-Appellants.

John L. Smelter (argued), Reuben S. Schifman, and Katherine

J. Barton, Attorneys; John C. Cruden, Assistant Attorney

General; United States Department of Justice, Environment

& Natural Resources Division, Washington, D.C.; Barbara N.

Coen, Office of the Solicitor, United States Department of the

Interior, Washington, D.C., for Defendants-Appellees.

AGUAYO V. JEWELL 5

OPINION

M. SMITH, Circuit Judge:

This appeal analyzes whether the Bureau of Indian Affairs

(BIA) acted arbitrarily and capriciously when it concluded

that, according to tribal law, it had no authority to intervene

in a tribal membership dispute, in which more than 150

people were disenrolled from the Pala Band of Mission

Indians (Pala Band or Band). We conclude that it did not, and

affirm the decision of the district court.

FACTS AND PROCEDURAL BACKGROUND

The Pala Band is a federally-recognized Indian tribe

located in northern San Diego County. The Secretary of the

Interior created the Pala Reservation in the late nineteenth

century, pursuant to the Mission Indian Relief Act of 1891.

See Escondido Mut. Water Co. v. Fed. Energy Regulatory

Comm’n, 692 F.2d 1223, 1225 (9th Cir. 1982), rev’d in part

on other grounds by Escondido Mut. Water Co. v. La Jolla

Band of Mission Indians, 466 U.S. 765 (1984).

In 1934, Congress passed the Indian Reorganization Act

(IRA). Indian Reorganization Act, ch. 576, 48 Stat. 984

(1934) (codified as amended at 25 U.S.C. §§ 461–479). The

IRA granted each Indian tribe “the right to organize for its

common welfare, and . . . adopt an appropriate constitution

and bylaws,” to be approved by the Secretary of the Interior.

25 U.S.C. § 476(a). By its terms, the IRA does not apply to

reservations “wherein a majority of the adult Indians, voting

at a special election duly called by the Secretary of the

Interior, shall vote against its application.” Id. § 478. The

Secretary of the Interior was directed to call such an election

6 AGUAYO V. JEWELL

“within one year after June 18, 1934.” Id. The Secretary

called such an election, and the Pala Band voted against

adopting the IRA on December 18, 1934. Theodore Haas, Ten

Years of Tribal Government Under I.R.A., 14 (U.S. Indian

Serv. 1947).

I. Articles of Association

Notwithstanding its decision to vote against the IRA in

1934, the Pala Band chose to organize its government. In

1960, it adopted Articles of Association as the Band’s

governing document. The Articles created an Executive

Committee, comprised of six elected officers, and a General

Council, which included all adult members of the tribe. The

Articles granted the General Council the power “[t]o enact

ordinances . . . governing future membership, loss of

membership and adoption of members into the Band.”

Shortly thereafter, the General Council enacted a

membership ordinance (the 1961 Ordinance), pursuant to the

authority granted to it in the Articles. Under the 1961

Ordinance, a person seeking membership in the Band would

apply to the Executive Committee, which would make a

report and recommendation to the Regional Director of the

BIA. If the Band recommended denying the application, the

applicant could appeal to the Regional Director, who would

then make a recommendation, and send a report to the

Commissioner of the BIA. If the Commissioner was satisfied

that the applicant met the enrollment criteria, he was to

“notify the appellant in writing and the Executive Committee

shall enter the applicant’s name on the membership roll.” In

other words, pursuant to the Articles of Association and the

1961 Ordinance, the Executive Committee made

AGUAYO V. JEWELL 7

recommendations, but the BIA was granted ultimate authority

over whether an applicant was enrolled.

Plaintiffs are descendants of Margarita Britten

(Margarita), a Pala Indian who was born in 1856. Their

eligibility to be enrolled as members of the Pala Band

depends on whether Margarita was a full- or half-blooded

Pala Indian.1 Margarita was originally considered to be one-

half Pala Indian, and thus her great-great-grandchildren did

not have the minimum 1/16 blood quantum to be eligible for

membership in the Band.

The first eligibility dispute regarding Margarita’s

descendants proceeded pursuant to the 1961 Ordinance. In

1984, the General Council concluded that the evidence

suggesting that Margarita was actually a full-blooded Pala

Indian was more accurate, and voted to change her status

accordingly. The General Council’s recommendation was

sent to a BIA Regional Director, Tom Dowell, who

recommended against enrolling her descendants because there

was insufficient evidence to establish Margarita’s blood

quantum. Director Dowell’s decision was appealed to the

Assistant Secretary-Indian Affairs in 1989, who reversed that

finding and concluded that Margarita should be considered a

full-blooded Pala Indian. Pursuant to the 1961 Ordinance, the

Executive Committee was then compelled to add Margarita’s

1

Margarita’s blood quantum depends upon the identity and lineage of

her father. The evidence on this issue is somewhat conflicting. For

instance, a reconstructed version of the original membership roll lists

Margarita as a full-blooded Pala Indian, but a copy with pen-and-ink edits

changed her designation to one-half Pala Indian. Likewise, some records

indicate that Margarita’s father was “unknown,” but available probate

testimony from a proceeding in the 1920s suggests that her father was

known, and that he was a full-blooded Pala Indian.

8 AGUAYO V. JEWELL

great-great-grandchildren, with the requisite 1/16 blood

quantum, to the Band’s membership rolls.

II. Pala Constitution

On November 22, 1994, the Pala Band held a general

election in which the tribe voted to adopt a new constitution

to supplant the Articles of Association. The Pala Band

submitted the Constitution to the BIA for approval in March

1995. The most relevant change was that the six-member

Executive Committee (not the General Council) would have

authority to “amend and/or replace its existing Enrollment

Ordinance with an Ordinance governing adoption, loss of

membership, disenrollment, and future membership.” The

agency recommended some changes, and the final version of

the Constitution was completed in 1997. The Constitution

provided that it would “become effective immediately after

its approval by a majority vote of the voters voting in a duly-

called elections [sic] at which this Constitution is approved

by the Bureau of Indian Affairs.”

On November 19, 1997 at a special meeting, with a

quorum of the General Council present, the Council passed

Resolution 97-36 to “adopt the Pala Tribal Constitution to

supersede the Articles of Association.” The resolution noted

in a preambulatory clause that “on November 22, 1994” the

tribe had voted to “revise the Pala Tribal Articles of

Association into the Pala Tribal Constitution,” suggesting that

the vote in 1994 was sufficient to approve the new

Constitution.

AGUAYO V. JEWELL 9

The Band submitted the 1997 Constitution to the Regional

Director of the BIA, who recommended further changes.2 In

a letter, the Regional Director noted that “[b]ased on a recent

opinion by the Regional Solicitor of a non-IRA Tribe’s

document, it was determined that Bureau review and approval

was not required.” She also noted that “the Pala General

Council had already adopted the constitution by resolution

dated 11/19/97,” suggesting that in the BIA’s estimation,

Resolution 97-36 was sufficient to adopt the Constitution.

Nonetheless, the Regional Director wrote that if the Band

decided to incorporate the BIA’s recommendations and

changes, the BIA would approve it retroactive to the date of

Resolution 97-36. The Chairman of the Executive Committee

responded that the Band did not want to incorporate the

BIA’s suggestions, but would like to have the Constitution

immediately approved nonetheless. On July 25, 2000, the

BIA issued a Certificate of Approval stating that the

“Constitution of the Pala Band of Mission Indians is hereby

approved retroactive to the date of adoption on November

123, 1997.”

2

One of the suggested changes proved to be a prescient warning. The

Regional Director noted that “when the governing body of the tribe

delegates totally the enactment of governing documents to its executive

body, problems may occur causing internal disputes. In adhering to the

governmental principle of checks and balances between the General

Council and the Executive Committee, it is recommended that the General

Council not delegate the enactment of Ordinances to the Executive

Committee.” (Emphasis added).

3

This date appears to be erroneous; Resolution 97-36 was passed on

November 19, 1997. The Regional Director’s previous letter reflects the

correct date.

10 AGUAYO V. JEWELL

There is some dispute concerning whether the general

tribal membership had notice that the 1997 Constitution was

the new governing document of the tribe. The Pala Band

appears to have been less than meticulous in using the correct

terminology to refer to the governing documents; for

example, the Band’s website in 2012 stated that it was

organized under “Articles of Association.” However, the facts

indicate that in the years following Resolution 97-36, the

tribal membership was at least on constructive notice that the

Constitution had been adopted.

As an initial matter, Resolution 97-36 was voted on

during a meeting of the General Council, at which a quorum

was present. Every adult member of the tribe is a member of

the General Council; it is comprised of the same group of

people that would have been eligible to vote on the

Constitution in a more formalized election. The meeting was

announced prior to its occurrence. Minutes were taken of that

meeting, and Plaintiffs do not allege that they were unable to

access records of the meeting, Resolution 97-36, or the 1997

Constitution.

Additionally, subsequent references and amendments to

the Constitution indicate that the general membership was on

notice of the Constitution. In another General Council

meeting on June 11, 2003, a member offered a motion that “at

eighteen (18) you get a copy of [the] Tribal Constitution.”

The General Council voted in favor of the motion, and the

minutes reflect “Action Instructions” to “send [a] copy to all

Tribal Members eighteen (18) and over.”

In a meeting on July 14, 2004, the General Council

meeting minutes reflect that “motions were passed by the

General Council” to put “Constitutional Amendments” on the

AGUAYO V. JEWELL 11

ballot. Those amendments included changes to the term

limits, qualifications, and residency requirements for

members of the Executive Committee. The minutes reflect

that in an “election,” the Band had voted to adopt those

“Amendments to the Pala Constitution.”

III. The 2009 Ordinance

Pursuant to its authority under the 1997 Constitution, the

Executive Committee adopted a new enrollment ordinance in

2009 (the 2009 Ordinance) to replace the 1961 Ordinance. Its

prefatory language stated that the Committee did “not intend

to alter or change the membership status of individuals whose

membership has already been approved and who are currently

listed on the membership roll of the Pala Band.”

Nevertheless, the operative language of the 2009 Ordinance

gave the Executive Committee the power to “reevaluate” an

applicant based on “misrepresented or omitted facts that

might have made him/her ineligible for enrollment,” and

remove such members from the rolls. A person who has

received an adverse decision from the Executive Committee

may “appeal” to the Regional Director, who is tasked with

reviewing the decision and making a “recommendation” to

the Executive Committee. After receiving the

recommendation, “the Executive Committee shall meet and

consider that recommendation and make a final decision on

the appeal of [the] decision. The decision of the Executive

Committee shall be final.” Thus, the 2009 Ordinance gave the

Executive Committee ultimate authority over enrollment

decisions, and relegated the BIA to an advisory role.

12 AGUAYO V. JEWELL

IV. Plaintiffs’ Disenrollment

In June 2011, the Executive Committee revisited the

enrollments of eight of Margarita’s great-great-grandchildren

“at the request of Pala tribal members,” invoking its authority

pursuant to the 2009 Ordinance. It concluded that those eight

descendants should be disenrolled, citing the 1985

recommendation of former Regional Director Dowell, who

concluded that there was insufficient evidence to declare

Margarita a full-blooded Pala Indian. Shortly thereafter, the

Executive Committee sent similar disenrollment notices to

150 of Margarita’s descendants. The notices stated that an

appeal could be filed with the Regional Director.

The first eight members to be disenrolled appealed to the

Regional Director, who recommended that the Band reverse

its decision. However, the Regional Director noted that she

only had advisory authority under the 2009 Ordinance. A few

months later, the Regional Director made a substantively

identical recommendation with regard to the remaining

individuals who had been disenrolled. The Executive

Committee did not follow the Regional Director’s

recommendations to re-enroll Margarita’s descendants.

The Assistant Secretary - Indian Affairs (AS-IA)

affirmed, concluding that “applicable tribal law established a

limited role for the Regional Director to make

recommendations on tribal action on enrollment appeals, but

the law reserves ultimate decision-making authority with the

Band.” In reaching this conclusion, the AS-IA rejected

Plaintiffs’ arguments that the 1997 Constitution, which

provided the basis for the 2009 Ordinance granting

enrollment authority to the Executive Committee, was void.

He concluded that any challenge to the agency’s approval of

AGUAYO V. JEWELL 13

the 1997 Constitution was time-barred, since more than six

years had passed since the BIA’s approval of it in 2000. The

AS-IA also determined that even if a challenge was not time-

barred, the agency was nevertheless correct when it chose to

tread lightly and not overly scrutinize the procedures used by

the tribe to ratify the Constitution in order to “avoid[]

unnecessary intrusion in tribal self-governance.” The AS-IA

accepted the Band’s position that Resolution 97-36, adopted

at a General Council meeting with a quorum present, was a

sufficient “election” to adopt the Constitution. In the

alternative, the AS-IA concluded that the general election in

November 1994, when the tribe approved the adoption of a

constitution, was sufficient to make the 1997 Constitution the

valid governing document of the tribe.

Because he had concluded that the 1997 Constitution was

valid, the AS-IA did not reach the merits of Plaintiffs’ claim

that the Executive Committee wrongly disenrolled them. The

AS-IA affirmed the Regional Director’s reasoning that under

the 2009 Ordinance, the BIA did not have authority to compel

the Executive Committee to change its decision. Finally, the

AS-IA declined to add two minor children to the agency

appeal, because they had not sought relief from the Regional

Director, and therefore their claims were not “within the

scope of the issues pending” in the agency appeal.

Sixty-five of the disenrolled members then commenced

a declaratory relief action in district court against the

Secretary of the Interior, the AS-IA, the Regional Director,

and other federal officials. They invoked 5 U.S.C.

§ 706(2)(A), alleging that the AS-IA’s decision was

“arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law.” The district court granted summary

judgment for Defendants, holding that the agency did not act

14 AGUAYO V. JEWELL

arbitrarily or capriciously with respect to any of its decisions.

Plaintiffs then filed this timely appeal.

ANALYSIS

“We review de novo the district court’s grant of summary

judgment.” Chemeheuvi Indian Tribe v. Jewell, 767 F.3d 900,

903 (9th Cir. 2014). “Summary judgment is appropriate when

‘there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.’” Id. (citing

Fed. R. Civ. P. 56(a)).

The propriety of the BIA’s “hands-off” approach hinges

on whether the Articles of Association and the 1961

Ordinance continue to govern the Band and its membership

disputes. If they do, the BIA has the authority to make final

decisions with regard to enrollment in the Band. On the other

hand, if those documents were supplanted by the 1997

Constitution and 2009 Ordinance, the BIA only has an

advisory role and cannot compel the Executive Committee to

re-enroll Plaintiffs.

In this appeal, Plaintiffs argue that the BIA’s conclusion

that the 1997 Constitution and 2009 Ordinance were the

governing law to be applied was arbitrary and capricious; that

the federal government’s general trust responsibility toward

Native Americans requires the BIA to take action to protect

Plaintiffs and their membership rights; and that the 1989

decision by the AS-IA, which ruled that Margarita was a full-

blooded Pala Indian, has binding and preclusive effect on the

Band. They also challenge the AS-IA’s decision not to join

the two minors in the agency appeal.

AGUAYO V. JEWELL 15

In response, Defendants argue that we are without

jurisdiction to review the AS-IA’s decision at all, because

tribal disputes are generally beyond federal adjudication, and

because any decision made by the AS-IA was committed to

agency discretion by law. They also defend the AS-IA’s

decision regarding the applicability of the 1997 Constitution

on the merits.

We consider the contentions of the parties in turn.

I. Jurisdiction and Standard of Review

Defendants contend that we do not have jurisdiction to

review this case because federal courts cannot adjudicate

tribal membership decisions, and in the alternative, because

the AS-IA’s decision was committed to agency discretion by

law. We find neither argument meritorious.

A. Tribal Membership Disputes

Tribal enrollment decisions are generally beyond the

power of federal courts to review. “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 v. Martinez, 436 U.S. 49,

72 n.32 (1978). Tribes are “immune from federal court

jurisdiction in disputes regarding challenges to membership

in the tribe,” and may not be sued for a reversal of an

intratribal membership enrollment decision. Lewis v. Norton,

424 F.3d 959, 961 (9th Cir. 2015).

Nor may a plaintiff make an “end run” around tribal

sovereign immunity by simply naming a federal agency in a

lawsuit instead of a tribe. Id. at 963. In Lewis, after a tribe

16 AGUAYO V. JEWELL

denied the plaintiffs’ application for enrollment, the plaintiffs

immediately filed an action for declaratory and injunctive

relief against the BIA in the district court. Id. at 961. That

action sought an order instructing the BIA to compel the tribe

to enroll the plaintiffs. Id. The plaintiffs had not sought any

relief from the BIA before filing suit. See id. at 963. The

court held that this was a transparent effort “to do an end run

around sovereign immunity,” and again held that federal

courts have no jurisdictional basis to directly review a tribe’s

enrollment decisions. Id.

A different scenario arises when a suit is not a direct

challenge to a tribe’s enrollment decision, but is instead a

challenge to agency action under the Administrative

Procedures Act (APA), 5 U.S.C. §§ 500–596. When a

plaintiff has previously sought relief from the BIA, federal

jurisdiction is proper to the extent that the plaintiff seeks

review of the agency’s decision “under the APA’s arbitrary

and capricious standard.” Alto v. Black, 738 F.3d 1111, 1123

(9th Cir. 2013).

A factual pattern similar to the one before us here arose

in Cahto Tribe of Laytonville Rancheria v. Dutschke,

715 F.3d 1225 (9th Cir. 2013). The Cahto Tribe’s General

Council voted to disenroll twenty-two tribal members. Id. at

1226. One of the disenrolled members appealed to the

Regional Director, who “directed the Tribe to place the

disenrolled members back on the membership roll.” Id. at

1227. As in this case, the merits of Cahto Tribe focused upon

whether the tribe’s governing documents authorized the BIA

to compel the tribe to re-enroll the plaintiffs. Id. at 1228. On

appeal, we held that the federal courts had jurisdiction to

review the BIA’s decision, including the question of whether

the BIA had jurisdiction under tribal law to review the

AGUAYO V. JEWELL 17

disenrollment decisions. Id. In Alto, we made explicit what

was implicit in Cahto Tribe: that the propriety of agency

action is a federal question over which we have jurisdiction,

even where the agency applied tribal law in the context of a

membership dispute. 738 F.3d at 1123–25.

B. Application of the APA

“[F]inal agency action for which there is no other

adequate remedy in a court [is] subject to judicial review.”

5 U.S.C. § 704. Judicial review under the APA is not proper,

however, if the “agency action is committed to agency

discretion by law.” 5 U.S.C. § 701(a)(2). The APA creates a

“strong presumption that Congress intends judicial review of

administrative action.” Bowen v. Mich. Acad. of Family

Physicians, 476 U.S. 667, 670 (1986). The question is

whether the AS-IA’s decision is a “final agency action,” and

whether that agency action is “committed to agency

discretion by law.”

1. Final Agency Action

The AS-IA did not take affirmative action to compel the

Band to re-enroll Plaintiffs; instead, it declined to intervene

on behalf of Plaintiffs in the enrollment dispute. Defendants

contend that because the AS-IA failed to act in the Plaintiffs’

interest, its decision does not constitute “final agency action”

from which legal consequences will flow. This is incorrect.

Under the APA, we have jurisdiction to review more than just

affirmative agency action. “Agency action” in the statute

“includes the whole or part of an agency rule, order, license,

sanction, relief, or the equivalent or denial thereof, or failure

to act.” 5 U.S.C. § 551(13); see 5 U.S.C. § 701(b)(2)

(referring to section 551 for the definition of “agency

18 AGUAYO V. JEWELL

action”). The BIA’s “denial” of relief to Plaintiffs, and its

“failure to act” on their behalf, is a “final agency action”

subject to judicial review.

2. Committed to Agency Discretion by Law

Judicial review of a final agency action is not proper if the

“agency action is committed to agency discretion by law.”

5 U.S.C. § 701(a)(2); Heckler v. Chaney, 470 U.S. 821, 828

(1985) (“[B]efore any review at all may be had, a party must

first clear the hurdle of § 701(a).”). The Supreme Court “has

cautioned that this exception is very narrow, and is applicable

only where statutes are drawn so broadly ‘that there is no law

to apply.’” Moapa Band of Paiute Indians v. U.S. Dep’t of

Interior, 747 F.2d 563, 565 (9th Cir. 1984) (quoting Citizens

to Preserve Overton Park v. Volpe, 401 U.S. 402, 410

(1971)). “Preclusion of judicial review is not lightly inferred,

and usually will not be found absent a clear command of the

statute.” Id. (citing Barlow v. Collins, 397 U.S. 159, 166–67

(1970)).

At oral argument, Defendants contended that the reason

there is “no law to apply” is because the IRA, with its

prescribed procedures for enacting tribal governing

documents, does not apply to the Pala Band. Instead, the AS-

IA acted according to the agency’s general powers over

Indian affairs. The BIA’s enabling statute gives the

Commissioner of Indian Affairs (under the direction of the

Secretary of the Interior) the “management of all Indian

affairs and of all matters arising out of Indian relations.”

25 U.S.C. § 2. Thus, Defendants contend that because the

enabling statute is so general, there is “no law to apply” and

their actions are “committed to agency discretion by law.”

AGUAYO V. JEWELL 19

We agree that the IRA does not apply to the Pala Band

and thus, to the extent Plaintiffs rely upon language from that

statute to support their position, they are in error. However,

we disagree that the enabling power in 25 U.S.C. § 2 is so

broad (and so unmoored from any legal standards) that the

BIA’s discretion under that section is unreviewable.

a. Application of the IRA

In the early twentieth century, the federal government’s

policy toward Native American tribes encouraged individual

land ownership and assimilation of Native Americans into

general American society. See Bugenig v. Hoopa Valley

Tribe, 266 F.3d 1201, 1205 (9th Cir. 2001) (en banc). That

approach was unsuccessful, and Congress changed its policy

to instead promote tribal sovereignty and self-government,

principally through the passage of the IRA. Id.

Plaintiffs draw upon the IRA because it includes

procedures for tribes to adopt governing documents, and for

the Secretary of the Interior to approve them.4 See 25 U.S.C.

§ 476. A tribe may adopt a constitution “at a special election

authorized and called by the Secretary,” according to rules

promulgated by the agency. 25 U.S.C. § 476(a). If it does so,

the Secretary “shall” approve the constitution unless she finds

4

At oral argument, Plaintiffs argued that in order for a governing

document to be validly approved, it must be approved by the Secretary

personally. Plaintiffs offered no authority supporting this contention. The

BIA’s enabling statute specifically authorizes the Secretary to “delegate,

from time to time, . . . [her] powers and duties . . . to the Commissioner of

Indian Affairs,” who is in turn authorized to “delegate, in like manner . . .

to the assistant commissioners, or the officer in charge of any branch,

division, office, or agency of the Bureau of Indian Affairs.” 25 U.S.C.

§ 1a.

20 AGUAYO V. JEWELL

that it is “contrary to applicable laws.” Id. § 476(d). A tribe

also “retain[s] inherent sovereign power to adopt governing

documents under procedures other than those specified” by

the agency. Id. § 476(h). Tribes that adopt constitutions

pursuant to other procedures are not guaranteed approval by

the Secretary, but the Secretary has discretion to approve

them nonetheless. See Cal. Valley Miwok Tribe v. United

States, 515 F.3d 1262, 1266–67 (D.C. Cir. 2008). The

Secretary properly exercises discretion not to approve a

governing document when it does not “reflect the

involvement of the whole tribal community.” Id.

However, the IRA, including the provision requiring

Secretarial approval of organizational documents, does not

automatically apply to all federally-recognized tribes. By its

terms, it does not apply to reservations “wherein a majority

of the adult Indians, voting at a special election duly called by

the Secretary of the Interior, shall vote against its

application.” 25 U.S.C. § 478. The parties do not dispute that

when the Pala Band held such an election in 1934, it voted

against becoming an IRA tribe.

As noted, the Pala Band adopted governing documents in

1960, and worked with the BIA to approve them. However,

such actions do not make the IRA applicable to the Band. In

United States v. Anderson, 625 F.2d 910, 913–14 (9th Cir.

1980), a member of the Fort Peck Tribes argued that a

provision of the IRA supported his position on a taxation

issue. We rejected his argument on the ground that the IRA

“does not apply to the Fort Peck Tribes” because they “voted

against the Act.” Id. at 916. Although they later chose to

adopt a tribal constitution “and have since behaved and been

treated by Interior exactly as if they were IRA tribes,” the

language of the IRA does “not disappear from our view

AGUAYO V. JEWELL 21

simply because the Interior chooses to wink.” Id. We noted

that if the Fort Peck Tribes “wish to be relieved from the

effects of their negative vote, they must seek such relief from

Congress.” Id. Like the Fort Peck Tribes, the Pala Band

appears to have been treated as if it was an IRA tribe for

much of its history. However, the fact remains that the Band

is not an IRA tribe, and the IRA, including any procedural

protections for the adoption of governing documents, does

not apply.

b. General Enforcement Power

Instead of acting pursuant to the IRA, the BIA acted

under its broad powers over Indian affairs articulated in

25 U.S.C. § 2. (“The Commissioner of Indian Affairs shall,

under the direction of the Secretary of the Interior . . . have

the management of all Indian affairs and of all matters arising

out of Indian relations.”). Defendants argue that in choosing

to respect the 1997 Constitution, the agency was making an

executive, policy-based decision of one sovereign

government recognizing another. Thus, they contend that

their decision was “committed to agency discretion by law”

because there is “no law to apply.”

Defendants are correct that no specific federal law

governed when reviewing the Executive Committee’s

decision. Nevertheless, the agency did review and apply tribal

law. The Regional Director’s letter concluded that the 2009

Ordinance “does provide authority to the Bureau of Indian

Affairs to review and make a recommendation on enrollment

appeals to the Executive Committee and does not provide

[the] Bureau of Indian affairs the authority to decide

enrollment appeals.” The AS-IA made a threshold decision

that the 1997 Constitution (and therefore the 2009 Ordinance)

22 AGUAYO V. JEWELL

were legitimate, but that too was based on an examination of

tribal law. He noted that the 1997 Constitution must be

approved at a “duly-called election[],” and analyzed whether

a meeting of the General Council was a sufficient “election”

according to the Articles of Association, the 1997

Constitution, and the Band’s practice.

In Alto, we held that the BIA’s decision on an enrollment

issue is not “committed to agency discretion by law” where

the agency must apply tribal law to reach its decision.

738 F.3d at 1124. In Alto the BIA proceeded, as here, under

its “official capacity as a manager of Indian affairs under

25 U.S.C. § 2.” Id. The tribal governing documents in Alto

expressly incorporated federal regulations that required

Secretarial approval of disenrollment decisions. Id. The court

held that “by reason of that . . . incorporation, the Secretary’s

decision is not ‘committed to agency discretion by law.’

Rather, the Secretary must apply the tribe’s own enrollment

criteria.” Id. (citation omitted). We held that the mere fact

that “the substantive law to be applied in this case is tribal

law does not affect our jurisdiction over an APA challenge to

the BIA’s decision.” Id.

In this case, the BIA was not making a generalized

decision about whether to recognize the Executive Committee

as the legitimate government of the Band, untethered to any

legal standard. At each level of agency review, it clearly

applied tribal law to answer the same question at issue in Alto

– whether “the tribe’s own governing documents vest the

[BIA] with ultimate authority over membership decisions.”

Id. at 1115. The exception to judicial review under the APA

for actions that are “committed to agency discretion by law”

does not apply, and we conclude that we have jurisdiction to

review the agency’s decision.

AGUAYO V. JEWELL 23

II. Reasonableness of the AS-IA’s decision

The APA requires that we set aside agency action that is

“arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law.” 5 U.S.C. § 706(2)(A). The arbitrary

and capricious standard of review is “highly deferential; the

agency’s decision is entitled to a presumption of regularity,

and we may not substitute our judgment for that of the

agency.” San Luis & Delta-Mendota Water Authority v.

Jewell, 747 F.3d 581, 601 (9th Cir. 2014) (internal quotation

marks omitted).

“The rejection of an application for enrollment or the

disenrollment of a tribal member by a tribal committee” may

only be appealed to the BIA “when the tribal governing

document provides for an appeal of the action to the

Secretary.” 25 C.F.R. § 62.4(a)(3). Plaintiffs argue that the

AS-IA abused his discretion when he concluded that the 1997

Constitution was the valid governing document of the tribe,

and that applicable tribal law did not authorize the agency to

compel the Pala Band to re-enroll Plaintiffs. We disagree.

The AS-IA reasonably decided that the statute of limitations

precluded a direct challenge to the agency’s approval of the

1997 Constitution; that the 1997 Constitution was validly

adopted in any event; and that the current governing

documents “established a limited role for the Regional

Director to make recommendations on tribal action on

enrollment appeals, but the law reserves ultimate decision-

making authority with the Band.”

Plaintiffs, in their agency appeal and in their case in

federal court, insist that the 1997 Constitution was not validly

adopted by the Band. By extension, they argue that the BIA

should not have approved that Constitution in 2000, and

24 AGUAYO V. JEWELL

should not have relied upon that approval in the current

enrollment dispute.

To the extent Plaintiffs’ claims rely on directly

challenging the BIA’s 2000 decision, it is barred by the

statute of limitations. “[E]very civil action commenced

against the United States shall be barred unless the complaint

is filed within six years after the right of action first accrues.”

28 U.S.C. § 2401. This time bar applies to actions under the

APA. Wind River Min. Corp. v. United States, 946 F.2d 710,

713 (9th Cir. 1991). The right of action generally accrues at

the time the agency action becomes final. See id. at 715.

There is a limited exception, however, when a plaintiff

challenges the “substance of an agency decision as exceeding

constitutional or statutory authority.” Id. In that instance, the

statute of limitations begins to run when the ultra vires

agency action is adversely applied to the plaintiff. Id.

Plaintiffs challenge the “substance” of the 2000 approval,

but they do not do so on the basis that the BIA’s approval

“exceed[ed] constitutional or statutory authority.” Id. Their

arguments are focused on whether the BIA should have

accepted and approved a document that was not voted on by

the Band in a formal election. Plaintiffs thus “protest the

agency’s action as a matter of policy or procedure,” id., and

are subject to the six-year statute of limitations. Because their

action was commenced twelve years after the BIA’s 2000

approval was final, their challenge to that decision is time-

barred.

However, even if Plaintiffs had challenged the BIA’s

retroactive approval of the 1997 Constitution within the

statute of limitations, it is highly unlikely they would have

been successful. The Regional Director in 2000 noted that

AGUAYO V. JEWELL 25

because the Pala Band was not an IRA tribe, “Bureau review

and approval was not required” for the Band to adopt the

1997 Constitution as its governing document. In other words,

the Band could have adopted the 1997 Constitution

notwithstanding agency approval or disapproval.

Plaintiffs make the general argument that the AS-IA

abused its discretion in its 2013 decision when it relied on the

1997 Constitution, which Plaintiffs argue is void as a matter

of tribal law. But, as the AS-IA noted in his decision, there is

at least some evidence that the 1997 Constitution was valid.

The Articles of Association state that they may be “amended

by a majority vote of the General Council and such

amendment shall be in effect upon the approval of the

Commissioner of Indian Affairs.” It does describe formal

“election” procedures in the context of electing members of

the Executive Committee, referring to polling places and

absentee ballots. But it does not define the term “election,” or

limit the type of “vote” or “election” that is required to amend

or replace the Articles. In 1994, the Band as a whole voted in

a formal election to replace the Articles of Association with

a then to-be-drafted constitution.

The 1997 Constitution likewise does not define what

constitutes a “duly-called election[].” After the General

Council adopted Resolution 97-36, the Pala Band sent the

1997 Constitution to the Regional Director for approval, and

represented that it had been “voted” on and “passed” by the

Band. This indicates that, in the estimation of the Band’s

government, the General Council vote was sufficient to adopt

the new constitution. The AS-IA noted that “[i]n practice . . . ,

the Articles of Association were amended at both meetings

and at elections, as long as a quorum of 25 was present.” He

concluded that the Band “used these terms interchangeably.”

26 AGUAYO V. JEWELL

Plaintiffs presented counter-evidence indicating that no

sufficient “election” was held. They submitted a declaration

from Elsie Lucero, a former BIA employee responsible for

advising the Pala Band’s enrollment committee. She asserted

that in her “years of experience with the BIA, ‘election’

means tribal members are allowed to vote in a noticed,

balloted election.” She attested that the word “election” in the

1997 Constitution “means an established election ordinance,

polling places, an election committee, and absentee ballots.”

Plaintiffs also submitted a declaration from King Freeman, a

former member of the Executive Committee. He declared that

“it was our custom and tradition that when there were to be

major amendments contemplated to the Articles of

Association, the Band always held a referendum election

where all eligible voters had the right to vote by ballot.” As

a signer of Resolution 97-36, he represented that the

resolution “was not meant to replace a future referendum

election.”

The procedures used to adopt the 1997 Constitution

appear to be somewhat informal. However, when it comes to

matters of tribal governance and membership, the AS-IA

explained that the BIA generally maintains a hands-off

approach, treading lightly to “avoid[] unnecessary intrusion

in tribal self-governance.” (Citing Cheyenne River Sioux

Tribe v. Aberdeen Area Dir., 24 IBIA 55, 62 (1993) and

Santa Clara Pueblo, 436 U.S. at 60, 63). See also Cal. Valley

Miwok Tribe, 515 F.3d at1267 (“[T]he sovereign nature of

Indian tribes cautions the Secretary not to exercise

freestanding authority to interfere with a tribe’s internal

governance . . . .”). The claimed irregularities in tribal voting

procedures are not the proper subject of exacting scrutiny by

the BIA. Moreover, our review of the BIA’s actions under the

APA is in turn highly deferential; we decide only whether the

AGUAYO V. JEWELL 27

BIA’s decision was based on a “clear error of judgment.”

Gifford Pinchot Task Force v. United States Fish & Wildlife

Serv., 378 F.3d 1059, 1065 (9th Cir. 2004). We conclude that

the BIA does not commit a clear error of judgment when it

can “state a rational connection between the facts found and

the decision made.” Id. The AS-IA’s decision articulated a

rational interpretation of the facts before him, and reasonably

concluded that the 1997 Constitution was valid,

notwithstanding the absence of a formal election, based on

the language of the governing documents, and the past

practice of the Band.

III. Trust Responsibility

Plaintiffs next argue that the BIA has an independent trust

duty to protect them from unjust disenrollment. While there

is unquestionably “a general trust relationship between the

United States and the Indian people,” United States v.

Jicarilla Apache Nation, 564 U.S. 162, 176 (2011) (internal

quotation marks omitted), Plaintiffs have not persuaded us

that the trust duty requires reversal of the agency’s decision

in this context.

Plaintiffs do not cite any authority suggesting an

uncabined trust duty requiring the BIA to protect their

membership rights at any cost. Plaintiffs rely heavily on

California Valley Miwok Tribe, 515 F.3d 1262, for the

proposition that the BIA has a trust obligation to ensure the

political integrity of tribal governing documents. In

California Valley Miwok Tribe, the plaintiff and a very small

group of supporters went “rogue” and created a new

constitution that was clearly not supported by the majority of

the tribe. Id. at 1267. The Secretary declined to approve the

constitution under the IRA. The D.C. Circuit held that the

28 AGUAYO V. JEWELL

Secretary reasonably exercised its discretion because the

constitution did not “reflect majoritarian values.” Id. at

1267–68.

Plaintiffs’ reliance on California Valley Miwok Tribe is

misplaced for two reasons. First, the D.C. Circuit held only

that the Secretary’s decision not to approve the rogue

constitution under the IRA (which, as explained above, does

not control the case before us) was a reasonable exercise of

her discretion, given the government’s “obligation . . . to

promote a tribe’s political integrity.” Id. at 1267. It did not

hold that the BIA must refuse to respect the governing

document of a tribe (particularly where the BIA is only asked

to apply, and not approve, that document) if Plaintiffs

complain that it does not reflect their wishes.

Second, the AS-IA’s decision indicates that, in the BIA’s

judgment, the 1997 Constitution sufficiently reflected the will

of the Band in order to warrant the acknowledgment of the

federal government. The AS-IA acted within the confines of

his discretion in concluding that even if there were some

procedural problems in the adoption of the 1997 Constitution,

between the approval of Resolution 97-36 at the 1997

General Council meeting and the general election in 1994, the

new constitution had been validly approved. Moreover, the

1997 Constitution is not as obviously counter-majoritarian as

the constitution at issue in California Valley Miwok Tribe.

We defer to the AS-IA’s reasoned judgment that the 1997

Constitution was the valid governing document of the tribe.

See San Luis & Delta-Mendota Water Authority, 747 F.3d at

601. A generalized invocation of the government’s trust

responsibility toward Native Americans does not compel the

conclusion that the BIA acted arbitrarily or capriciously under

these circumstances.

AGUAYO V. JEWELL 29

IV. Collateral Estoppel

Plaintiffs also argue that the tribe should be bound by the

BIA’s 1989 decision that Margarita was a full-blooded Pala

Indian, by virtue of res judicata and collateral estoppel

principles. We find this argument unavailing. The 1989

decision was made pursuant to the 1961 Ordinance, which

vested the BIA with authority over enrollment decisions. As

we have noted, that law changed with the adoption of the

1997 Constitution and then the 2009 Ordinance, which gave

the Executive Committee the power to “reevaluate” previous

membership decisions and remove members from the rolls.

Because the Executive Committee now has ultimate

authority over enrollment decisions under the 1997

Constitution and 2009 Ordinance, the AS-IA reasonably

concluded that any questions of the surviving preclusive

effect of the 1989 decision are properly directed to the Band,

not the BIA.

V. Joinder of Minors

The AS-IA declined to join two disenrolled minors to the

agency appeal, because the minors had not challenged their

disenrollment before the Regional Director. This was

reasonable. The AS-IA was “addressing appeals from the

Regional Director’s letters,” and thus the claims of the

minors, who had not suffered any adverse decision from the

Regional Director, were “not within the scope of the issues

pending before the [AS-IA].”

30 AGUAYO V. JEWELL

CONCLUSION

In reaching our decision, we recognize with regret that

Plaintiffs will suffer severe and significant consequences

from losing their membership in the Pala Band. It is also

plausible that Plaintiffs were disenrolled unjustly, or in a

manner not in accordance with tribal law. But the AS-IA

aptly noted that “in the exercise of sovereignty and self-

governance, tribes have the right, like other governments, to

make good decisions, bad decisions, and decisions with

which others may disagree.” The federal government does not

interfere in those decisions in the absence of specific

authority to do so.

The district court’s grant of summary judgment,

upholding the decision of the AS-IA, is AFFIRMED.

Defendants’ motion to supplement the record on appeal

(Dkt. 26) is GRANTED.

Plaintiffs’ motion for judicial notice (Dkt. 34, 43) is

DENIED.