Chemehuevi Indian Tribe v. John McMahon

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHEMEHUEVI INDIAN TRIBE, on its No. 17-56791

own behalf and on behalf of its

members parens patriae; CHELSEA D.C. No.

LYNN BUNIM; TOMMIE ROBERT 5:15-cv-01538-

OCHOA; JASMINE SANSOUCIE; NAOMI DMG-FFM

LOPEZ,

Plaintiffs-Appellants,

OPINION

v.

JOHN MCMAHON, in his official

capacity as Sheriff of San

Bernardino County; RONALD

SINDELAR, in his official capacity as

deputy sheriff for San Bernardino

County,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

Dolly M. Gee, District Judge, Presiding

Argued and Submitted May 13, 2019

Pasadena, California

Filed August 19, 2019

2 CHEMEHUEVI INDIAN TRIBE V. MCMAHON

Before: Kim McLane Wardlaw and Andrew D. Hurwitz,

Circuit Judges, and Edward R. Korman, * District Judge.

Opinion by Judge Hurwitz

SUMMARY **

Civil Rights/Indian Country

The panel affirmed in part and vacated in part the district

court’s dismissal of a complaint and remanded in an action

brought pursuant to 42 U.S.C. § 1983 by the Chemehuevi

Indian Tribe and four of its enrolled members alleging

violations of various federal statutory and constitutional

rights in connection with citations by San Bernardino

County Sheriff’s Deputies of four Tribe members for

violating California regulatory traffic laws.

The panel first analyzed the history and establishment of

the Chemehuevi Reservation and concluded that the area

where the Tribe members were cited was within the

boundaries of the Reservation and hence was “Indian

country” under 18 U.S.C. § 1151(a). Accordingly, the panel

held that San Bernardino County did not have jurisdiction to

enforce California regulatory traffic laws within that area.

*

The Honorable Edward R. Korman, United States District Judge

for the Eastern District of New York, 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.

CHEMEHUEVI INDIAN TRIBE V. MCMAHON 3

The panel held that the individual plaintiffs, but not the

Tribe, could challenge the citations under § 1983. The panel

held that because § 1983 was designed to secure private

rights against government encroachment, tribal members

could use it to vindicate their individual rights, but not the

tribe’s communal rights. The panel therefore vacated the

district court’s judgment dismissing the complaint as to the

individuals, but affirmed the judgment as to the Tribe.

COUNSEL

Lester John Marston (argued), Rapport and Marston, Ukiah,

California, for Plaintiffs-Appellants.

Shaun M. Murphy (argued) and Katelyn K. Empey, Slovak

Baron Empey Murphy & Pinkey LLP, Palm Springs,

California; Michelle Blakemore and Miles Kowalski, San

Bernardino County Counsel, San Bernardino, California; for

Defendants-Appellees.

OPINION

HURWITZ, Circuit Judge:

In 2015, San Bernardino County Sheriff’s Deputies cited

four enrolled members of the Chemehuevi Indian Tribe for

violating California regulatory traffic laws. Two of the

Tribe’s members were cited on Section 36 of Township

5 North, Range 24 East (“Section 36”), a one square mile

plot the Tribe claims is part of its Reservation; two were

cited elsewhere on the Reservation.

4 CHEMEHUEVI INDIAN TRIBE V. MCMAHON

It is undisputed that the Sheriff cannot enforce regulatory

traffic laws in “Indian country.” See 18 U.S.C. § 1162;

28 U.S.C. § 1360. “Indian country” includes, but is not

limited to, land within the boundaries of a reservation.

18 U.S.C. § 1151. The issues for decision today are

(1) whether the individual Tribe members and the Tribe can

challenge the citations through a 42 U.S.C. § 1983 action;

and, if so, (2) whether Section 36 is Indian country. We hold

that the individual plaintiffs, but not the Tribe, can challenge

the citations under § 1983. And, we conclude that all the

citations occurred within Indian country. We therefore

vacate the district court’s judgment dismissing the complaint

as to the individuals but affirm the judgment as to the Tribe.

I. Background.

A. Facts.

Chelsea Lynn Bunim, Jasmine Sansoucie, Tommie

Robert Ochoa, and Naomi Lopez are enrolled members of

the Chemehuevi Tribe. Each was stopped and cited by a San

Bernardino County Sheriff’s Deputy for violating a

California regulatory traffic law. Deputy Sheriff Ronald

Sindelar stopped and cited Bunim on Section 36 for driving

without a valid registration. Sindelar impounded Bunim’s

car, leaving her alone on the roadside. Deputy Sindelar also

stopped Sansoucie on Section 36, citing her for driving with

a suspended license.

Deputy Sindelar cited Ochoa for driving without a valid

registration and failing to provide evidence of financial

responsibility. Sindelar had Ochoa’s car towed, leaving him

alone on the roadside. Deputy Sheriff J. Wagner cited Lopez

for driving without a valid registration. Both of these

citations were issued at locations that the parties agree are

inside the boundaries of the Chemehuevi Reservation.

CHEMEHUEVI INDIAN TRIBE V. MCMAHON 5

Bunim, Sansoucie, Ochoa, Lopez, and the Tribe sued the

Sheriff and the Deputies under 42 U.S.C. § 1983, alleging

violations of various federal statutory and constitutional

rights. The complaint sought monetary damages, a

declaratory judgment, and injunctive relief. The defendants

argued that none of the plaintiffs’ claims was cognizable

under § 1983. In addition, in response to the claims raised

by Bunim and Sansoucie, the defendants argued that Section

36 was outside the Reservation boundaries, and therefore

within the County’s regulatory jurisdiction.

B. Procedural History.

The district court initially entered a preliminary

injunction prohibiting the defendants from “citing, arresting,

impounding the vehicles of, and prosecuting Chemehuevi

tribal members for on-reservation violations” of California

regulatory vehicle laws, including violations occurring on

Section 36. The court determined there were “at least

serious questions going to the merits” of whether Section 36

was “Indian country.”

But, the court later granted summary judgment to the

defendants, concluding that Section 36 was not part of the

Chemehuevi Reservation and therefore not Indian country

under 18 U.S.C. § 1151(a). In a motion to amend the

judgment, Ochoa and Lopez noted that they were not

ticketed in Section 36. The district court denied the motion,

holding that even if the plaintiffs were cited on the

Reservation, they failed to allege “a well-established

constitutional violation for purposes of their section 1983

claim.” The court reasoned that § 1983 “is concerned with

the relationship between individuals and the state, not the

distribution of power between state, federal, or tribal

governments,” and therefore neither the “right to be free of

6 CHEMEHUEVI INDIAN TRIBE V. MCMAHON

state regulation” nor “the right to tribal government” is

“within the scope of section 1983.” 1

The Tribe and the individual plaintiffs timely appealed.

We have jurisdiction of that appeal under 28 U.S.C. § 1291

and review the summary judgment de novo. Parravano v.

Babbitt, 70 F.3d 539, 543 (9th Cir. 1995).

II. Discussion.

A. Is Section 36 Indian Country?

We turn first to the question whether Section 36 is in the

Chemehuevi Reservation, and thus Indian country under

18 U.S.C. § 1151(a). But it is important also to note at the

outset what issues are not before us. We need not—and do

not—decide today who holds title to Section 36. Indian

country includes “all land within the limits of any Indian

reservation . . . notwithstanding the issuance of any patent.”

18 U.S.C. § 1151(a). “[A]djudicating reservation

boundaries is conceptually quite distinct from adjudicating

title to the same lands. One inquiry does not necessarily

have anything in common with the other, as title and

reservation status are not congruent concepts in Indian law.”

Navajo Tribe of Indians v. New Mexico, 809 F.2d 1455, 1475

(10th Cir. 1987) (internal quotation marks and footnote

omitted); see Solem v. Bartlett, 465 U.S. 463, 466–68

(1984).

1

The complaint also alleged that the citations “constitute[d] racial

discrimination in direct violation” of the Equal Protection Clause. The

district court held that “the specter of racial animus” was not “sufficient

to create a triable issue of fact that Defendants violated” the Fourteenth

Amendment. The plaintiffs do not challenge that ruling on appeal.

CHEMEHUEVI INDIAN TRIBE V. MCMAHON 7

Our inquiry as to the reservation status of Section 36

begins in 1853. After California gained statehood, Congress

ordered a survey of its public lands and granted the State title

to sections 16 and 36 of each township. 2 Act of March 3,

1853, ch. 145, 10 Stat. 244, 245–46. But, the 1853 Act

specifically excluded from that grant any land “in the

occupation or possession of any Indian tribe.” Id. at 246–47.

The Surveyor General approved a survey of the land at issue

in this case in 1895.

While that survey was being conducted, Congress

ordered the Secretary of the Interior “to select a reservation”

for each California Mission Indian tribe. Mission Indian

Relief Act, ch. 65, 26 Stat. 712, 712 (1891). The

reservations were to “include, as far as practicable, the lands

and villages which have been in the actual occupation and

possession of said Indians.” Id. Although the Secretary was

also instructed to “cause a patent to issue for each”

reservation, and thus transfer title to the land to the United

States as trustee for the tribes, the Act provided that the

reservations would be “valid when approved by the

[Executive Branch].” Id. In 1905, Congress authorized the

Secretary “to investigate through an inspector . . . existing

conditions of the California Indians and to report to

Congress at the next session some plan to improve the

same.” Act of March 3, 1905, ch. 1479, 33 Stat. 1048, 1058.

Special Agent C.E. Kelsey was then dispatched to visit

the Chemehuevi Tribe and identify territory for a

reservation. In 1907, Kelsey issued a report to the

2

See U.S. Geological Survey, The Public Land Survey System, The

National Map Small Scale (Jan. 18, 2018),

https://nationalmap.gov/small_scale/a_plss.html (explaining township,

range, and section designations).

8 CHEMEHUEVI INDIAN TRIBE V. MCMAHON

Commissioner of Indian Affairs, identifying land to be

included in the reservation. He specifically recommended

that the reservation include the eastern half of Township

5 North, Range 24 East (“E. 1/2 of T. 5 N., R. 24 E.”)—

which contains Section 36. Kelsey noted that this land was

the “present location” of the tribal members and that “there

is no question but they have occupied this land since

primeval times.” The Commissioner forwarded Kelsey’s

recommendation to the Secretary of the Interior.

In an executive order (the “1907 Order”), the Secretary

then “direct[ed] that the lands referred to” by Kelsey and the

Commissioner “be withdrawn from all form of settlement,”

and created the Chemehuevi Reservation. The Secretary

also asked Congress “to authorize the addition of certain

lands to the Mission Indian Reservations.” Although

Congress did not act upon this proposed legislation, it

subsequently recognized the existence of the Chemehuevi

Reservation in the Parker Dam Act, ch. 522, 54 Stat. 744

(1940).

It is clear that a Chemehuevi Reservation was validly

established by the Secretary’s 1907 Order, notwithstanding

the absence of subsequent Congressional approval. Indeed,

the Supreme Court has expressly so recognized:

Congress and the Executive have ever since

recognized these as Indian Reservations. . . .

They have been uniformly and universally

treated as reservations by map makers,

surveyors, and the public. We can give but

short shrift at this late date to the argument

that the reservations . . . are invalid because

they were originally set apart by the

Executive.

CHEMEHUEVI INDIAN TRIBE V. MCMAHON 9

Arizona v. California, 373 U.S. 546, 598 (1963); see also id.

at 596 & n.100. 3

The defendants argue that the 1907 Order was invalid ab

initio because Section 36 had already been deeded to

California. The factual premise of that argument, however,

is subject to question. The 1853 Act excluded any land “in

the occupation or possession of any Indian tribe,” 10 Stat.

at 246–47, and the Kelsey survey, adopted by the Secretary,

documents that Section 36 falls in that exception. The

district court erred in excluding the Kelsey report as hearsay.

It is plainly admissible as an ancient document, Fed. R. Evid.

803(16), which may contain multiple levels of hearsay.

30B Charles Alan Wright & Arthur R. Miller, Federal

Practice & Procedure § 6935 (2018 ed.) (“[E]xclusion of

statements in qualifying ancient documents on the grounds

that the author lacked firsthand knowledge, or (relatedly)

that the document contains hearsay-within-hearsay should

be rare.”). Review of historical documents is typical—

indeed often necessary—in cases involving the boundaries

of Indian reservations. See, e.g., Idaho v. United States,

533 U.S. 262, 265–71 (2001).

But, as noted, we need not today decide the extent of the

1853 land grant. “[E]xecutive orders must be liberally

construed in favor of establishing Indian rights,”

Confederated Tribes of Chehalis Indian Reservation v.

3

The defendants cite Arizona v. California, 460 U.S. 605, 636 n.26

(1983), for the proposition that “the secretarial orders do not constitute

‘final determinations.’” But, “the secretarial orders” at issue in that

litigation were issued in the 1960s and 1970s. See id. at 631–32. In 1919

and 1927, Congress “prohibited future changes in Indian reservations by

executive order.” United States v. S. Pac. Transp. Co., 543 F.2d 676,

686 & n.15 (9th Cir. 1976). That prohibition plainly does not affect the

1907 Order.

10 CHEMEHUEVI INDIAN TRIBE V. MCMAHON

Washington, 96 F.3d 334, 340 (9th Cir. 1996), and are

“interpreted as the Indians would have understood them,”

Parravano, 70 F.3d at 544. Given the language of the 1853

Act, the Kelsey report identifying Section 36 as land

occupied historically by Indians, and the express inclusion

of Section 36 in the 1907 Order, the Chemehuevi Tribe (and

indeed, the Secretary of the Interior) surely understood

Section 36 to be within the Reservation.

Nor can we conclude that the boundaries of the

Reservation as established in the 1907 Order were later

diminished. “We do not lightly infer diminishment of

reservations.” Confederated Tribes of Chehalis, 96 F.3d

at 343–44. After 1927, Congress prohibited any change to

the boundaries of existing executive-order reservations

except by Congressional act. Act of March 3, 1927, ch. 299,

§ 4, 44 Stat. 1347 (codified at 25 U.S.C. § 398d); see S. Pac.

Transp., 543 F.2d at 686 & n.15. There is no such act

removing Section 36 from the Chemehuevi Reservation.

The defendants also rely on a patent issued to the Tribe

by the Bureau of Land Management in 2010, which excluded

“[t]hose lands granted to the State of California . . . on July

10, 1895”—the date on which the government survey was

finalized—“located in . . . sec. 36, T. 5 N., R. 24 E.” But, as

noted above, we do not today adjudicate title. More

importantly, because the 2010 patent was issued over a

century after the Reservation was established, it provides no

evidence of the intent of the Executive or the understanding

of the Tribe in 1907. Nor can it, nor does it purport to,

diminish the Chemehuevi Reservation. The patent cites the

1907 Order, then grants some of the land covered by that

order to the Tribe in trust—an issue of ownership. It is silent

as to the reservation status of any land excluded from the

patent.

CHEMEHUEVI INDIAN TRIBE V. MCMAHON 11

We therefore conclude that Section 36 is within the

Chemehuevi Reservation and hence “Indian country” under

18 U.S.C. § 1151(a).

B. Can the Plaintiffs Sue Under § 1983?

California cannot enforce state law that regulates—but

does not prohibit—tribal members’ conduct inside a

reservation. Confederated Tribes of Colville Reservation v.

Washington, 938 F.2d 146, 147 (9th Cir. 1991) (citing

18 U.S.C. § 1162; 28 U.S.C. § 1360). The defendants

concede that the citations at issue involved regulatory laws

and therefore could not be issued against enrolled members

of the Tribe within the boundaries of the Reservation. See

id. at 148. But, they argue that even such citations cannot be

the subject of a § 1983 action.

We disagree. Section 1983 allows any “person” to sue

for the “deprivation of any rights, privileges, or immunities

secured by the Constitution and laws.” 42 U.S.C. § 1983.

Because § 1983 “was designed to secure private rights

against government encroachment,” Inyo Cty. v. Paiute-

Shoshone Indians of the Bishop Cmty. of the Bishop Colony,

538 U.S. 701, 712 (2003), tribal members can use it to

vindicate their “individual rights,” but not the tribe’s

“communal rights,” Skokomish Indian Tribe v. United

States, 410 F.3d 506, 515–16 (9th Cir. 2005) (en banc). And,

“traditional section 1983 suit[s]”—for example, those

challenging an arrest on tribal land—seek to vindicate an

“individual right.” See id. at 516 n.8 (citing Romero v.

Kitsap Cty., 931 F.2d 624, 627 n.5 (9th Cir. 1991)).

Bunim, Sansoucie, Ochoa, and Lopez’s claims are

“traditional” § 1983 suits. Each was stopped and detained

by a San Bernardino County Deputy; some had their vehicles

seized. They contend that their detentions and citations

12 CHEMEHUEVI INDIAN TRIBE V. MCMAHON

violated the Constitution and federal statutes. They have a

cause of action under § 1983 against the defendants.

The Tribe, however, does not have a § 1983 claim. An

Indian tribe “may not sue under § 1983 to vindicate” a

“sovereign right,” such as its right to be free of state

regulation and control. Inyo Cty., 538 U.S. at 712. Nor can

the Tribe assert its members’ individual rights as parens

patriae in a § 1983 action. To assert parens patriae

standing, the Tribe would have to “articulate an interest apart

from the interests of particular private parties,” i.e., “be more

than a nominal party,” and “express a quasi-sovereign

interest.” Missouri ex rel. Koster v. Harris, 847 F.3d 646,

651 (9th Cir. 2017). That requirement is inconsistent with a

§ 1983 action: quasi-sovereign interests are not individual

rights.

III. Conclusion.

The Chemehuevi Reservation, as established by the 1907

Order, includes Section 36. Section 36 is therefore Indian

country, and San Bernardino County does not have

jurisdiction to enforce California regulatory laws within it.

The individual plaintiffs may bring § 1983 claims against the

defendants. The Tribe, however, cannot assert its sovereign

rights under that statute. 4

AFFIRMED in part, VACATED and REMANDED

in part. Each party shall bear its own costs.

4

We take no position on any defenses, including immunity, the

defendants might have to the claims raised by the individuals.