UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT · Case No. 2:10-cv-01306 APPELLANT’S REPLY BRIEF Colin Cloud Hampson Reid Peyton Chambers SONOSKY, CHAMBERS, SACHSE, SONOSKY,

Docket No. 11-17847

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

CAHTO TRIBE OF THE LAYTONVILLE RANCHERIA, Plaintiff-Appellant,

v.

AMY DUTSCHKE, ACTING REGIONAL DIRECTOR FOR THE PACIFIC REGION, BUREAU OF INDIAN AFFAIRS, UNITED STATES DEPARTMENT

OF THE INTERIOR; et al., Defendants-Appellees.

Appeal From The United States District Court For The Eastern District of California

Case No. 2:10-cv-01306

APPELLANT’S REPLY BRIEF

Colin Cloud Hampson Reid Peyton Chambers SONOSKY, CHAMBERS, SACHSE, SONOSKY, CHAMBERS, SACHSE, ENDRESON & PERRY, LLP ENDRESON & PERRY, LLP 750 B Street, Suite 3130 1425 K Street, NW, Suite 600 San Diego, California 92101 Washington, DC 20005 (619) 546-5585 (202) 682-0240

Attorneys for Appellant Cahto Tribe of the Laytonville Rancheria

Case: 11-17847 05/11/2012 ID: 8175678 DktEntry: 26 Page: 1 of 38

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TABLE OF CONTENTS

INTRODUCTION………………………………………………………………….1

ARGUMENT…………………………………………………...…………………..3

I. THE CAHTO TRIBE HAS THE POWER TO DISENROLL TRIBAL MEMBERS WITHOUT INTERFERENCE OR REVIEW BY THE BUREAU OF INDIAN AFFAIRS BECAUSE THE CAHTO TRIBE HAS NEVER EXPRESSLY REQUIRED THE BUREAU TO REVIEW THE TRIBE’S DECISIONS REMOVING MEMBERS.…………………………….3 A. The Tribe’s Enrollment Ordinance does not expressly require

the BIA to review tribal decisions removing members………..5

B. The Tribe’s interpretation of its Enrollment Ordinance is clearly reasonable and thus was entitled to deference by BIA………………………………….........................................9

C. The Tribe’s decision to remove the Sloans from membership

constituted the Tribe’s application of its own membership criteria, not an interpretation of federal law………………….11

II. ALTERNATIVELY, THE INTERIOR BOARD OF INDIAN

APPEALS’ 2002 DECISION REQUIRED THE BIA TO RECOGNIZE THE TRIBE’S 1995 DECISION REMOVING THE SLOANS FROM THE TRIBAL MEMBERSHIP ROLL, AND BARRED THE BIA FROM SUBSEQUENTLY UNDOING THE TRIBE’S DECISION IN THE GUISE OF RESOLVING THE SLOANS’ ADMINISTRATIVE APPEAL……16

CONCLUSION…………………………………………………………………...23 CERTIFICATE OF COMPLIANCE…………………………………….……….24 STATUTORY ADDENDUM…………………………………………………….25


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TABLE OF AUTHORITES

Cases

Allen v. Gold Country Casino, 464 F.3d 1044 (9th Cir. 2006)……………………………………………….8

B.B v. Rocky Mountain Regional Director, BIA,

39 IBIA 48 (2003)………………………………………………....……….21 C & L Enters. v. Citizen Band Potawatomi Indian Tribe of Okla.,

532 U.S.411(2001)…………………………………… ……………..……8,9 Cahto Tribe of Laytonville Rancheria v. Pacific Regional Director, BIA,

38 IBIA 244 (2002)……………………………………….......16,17,18,20,21 Cal. Energy Comm’n v. Dep’t. of Energy,

585 F.3d 1143 (9th Cir. 2009) …………………………………………...…6 California Valley Miwok Tribe v. United States,

515 F.3d 1262 (D.C. Cir. 2008) ………….……………………………….14 Linneen v. Gila River Indian Comty.,

276 F.3d 489 (9th Cir. 2002)……………………………………………….9 New Hampshire v. Maine,

532 U.S. 742, 749-50 (2001)…………………………………………...…18 Ordinance 59 Ass’n v. U.S. Dep’t of the Interior,

163 F.3d 1150 (10th Cir. 1998)…………………………………………...16 Ransom v. Babbitt,

69 F. Supp 2d 141 (D.D.C. 1999)………………………………………….8 Santa Clara Pueblo v. Martinez,

436 U.S. 49 (1978)……………………………………………….7,8,13, 16 Smith v. Babbitt,

100 F.3d 556, 559 (8th Cir. 1996)……………..……………..…..………16


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Stratosphere Litig. LLC v. Grand Casinos, Inc., 298 F.3d 1137 (9th Cir. 2002)…………………………….……………….22

United States v. Liquidators of European Fed. Credit Bank,

630 F.3d 1139 (9th Cir. 2011)………………………….…………….……18 Wheeler v. U.S. Dep’t of Interior,

811 F.2d 549 (10th Cir. 1987) …..………………………………………….8 Vedolla v. Acting Pacific Regional Director, BIA,

43 IBIA 151 (2006)……………………………………………………...…22

Federal Statutes

California Rancheria Termination Act of 1958……………………………….….12 Hoopa-Yurok Settlement Act…………………………………………………….12

25 U.S.C. § 1300i ………………………………………………………....12 25 U.S.C. § 1300i-3………………………………………………………..13 25 U.S.C. § 1300i-4………………………………………………………..13

Federal Regulations

25 C.F.R. Part 62…………………………………………………………….20, 21

43 C.F.R. §4.312………………………………………………………………….17

Other References

Articles of Association of the Laytonville Rancheria…………………...…10,12,13


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Enrollment Ordinance……………………………………..….4,5,6,7,9,10,11,12,13 Exec. Order No. 13,175,

65 Fed. Reg. 67,249 (Nov. 6, 2000) (President Clinton)……………..……..2 Memorandum for the Heads of Executive Departments and Agencies on

Tribal Consultation, 74 Fed. Reg. 57, 881 (Nov. 5, 2009), available at http://www.whitehouse.gov/the-press-office/memorandum-tribal-consultation-signed-president .........................................................................2

President Lyndon Johnson’s Special Message to Congress on the Problems

of the American Indian: “The Forgotten American,” 113 PUB. PAPERS 335 (Mar. 6, 1968)…………………………………………………………...2

Proclamation No. 7500,

66 Fed. Reg. 57,641 (Nov. 12, 2001)………………………………..………2

“Special Message to the Congress on Indian Affairs,” 213 PUB. PAPERS 564 (July 8, 1970); H.R. REP. NO. 91-361 (1970), reprinted in 116 CONG. REC. 23,258 (1970) ………………………………………………………….2

Statement by President George H.W. Bush, “Reaffirming the Government-to- Government Relationship between the Federal Government and Tribal Governments,” 1991 PUB. PAPERS 662 (June 14, 1991)……………………..2

Statement of President Ronald W. Reagon on Indian Policy, 1983 PUB. PAPERS 96

(June 14, 1991)………………………………………………………………2


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INTRODUCTION

This is a case about a tribe’s right to self-government. One of the central

rights of a sovereign Indian tribe is to define its own membership. Nearly

seventeen years ago, the Cahto Tribe exercised this fundamental right. The Tribe

as a whole, sitting as a General Council, determined that certain persons could no

longer be members under the Tribe’s membership rules – because these persons

had accepted monies under a federal settlement act providing payments to persons

having rights on another reservation from resources of that reservation, and

participation in more than one tribe or reservation is grounds for disqualification

from membership in the Cahto Tribe. Almost ten years ago, the Interior

Department’s Board of Indian Appeals ruled that the Department had no authority

to interfere with the Tribe’s ruling. For a number of years after the Board’s

decision, the Bureau of Indian Affairs (BIA) adhered to this decision. But in 2009,

the BIA Regional Director issued a decision substituting his view of tribal law and

the equities of the situation for that of the Tribe itself. In this present appeal, the

Tribe challenges the lawfulness of the Regional Director’s decision.

The question for this Court is whether – after all this time and despite the

clear ruling of the Interior Board of Indian Appeals – the Tribe’s longstanding

determination regarding its own membership is subject to being undermined by the

BIA. For at least the last 40 years, the guiding principle of federal Indian policy


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has been tribal self-determination. This policy recognizes that Indian tribes have a

right to govern their own affairs, and make and enforce their own laws. This

policy, famously articulated by President Nixon,1 has been followed by every

Administration since.2 The basic principle of self-determination is that tribal

governments shall be empowered to govern their members and their reservations,

and that the heavy hand of the federal government should no longer prevent tribes

from controlling their own affairs.

This bipartisan federal Indian policy provides an important backdrop to the

matter before this Court. The Tribe here is seeking to determine its own

composition in a manner that is consistent with principles of self-determination.

The BIA, in contrast, is seeking to replace the Tribe’s determination with its own –

1 “Special Message to the Congress on Indian Affairs,” 213 PUB. PAPERS 564 (July 8, 1970); H.R. REP. NO. 91-361 (1970), reprinted in 116 CONG. REC. 23,258 (1970); see also President Lyndon Johnson’s Special Message to Congress on the Problems of the American Indian: “The Forgotten American,” 113 PUB. PAPERS 335 (Mar. 6, 1968). 2 See, e.g., Memorandum for the Heads of Executive Departments and Agencies on Tribal Consultation, 74 Fed. Reg. 57, 881 (Nov. 5, 2009) (President Obama), available at http://www.whitehouse.gov/the-press-office/memorandum-tribal-consultation-signed-president; Proclamation No. 7500, 66 Fed. Reg. 57,641 (Nov. 12, 2001) (President George W. Bush); Exec. Order No. 13,175, 65 Fed. Reg. 67,249 (Nov. 6, 2000) (President Clinton); Statement by President George H.W. Bush, “Reaffirming the Government-to-Government Relationship between the Federal Government and Tribal Governments,” 1991 PUB. PAPERS 662 (June 14, 1991); Statement of President Ronald W. Reagan on Indian Policy, 1983 PUB. PAPERS 96 (Jan. 24, 1983).


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in a manner that is in derogation of Tribal self-determination and reverts to the

discredited prior federal practice of paternalistic control over tribes by the BIA.

Behind any legal and factual complexities present in the case, the underlying

question is simple and straightforward – will the Tribe’s right to determine its own

membership be upheld, or will the BIA be allowed to take away that right, contrary

to tribal law, despite the passage of time, and despite an existing final Interior

Department ruling saying BIA has no authority to do so?

ARGUMENT I. THE CAHTO TRIBE HAS THE POWER TO DISENROLL TRIBAL

MEMBERS WITHOUT INTERFERENCE OR REVIEW BY THE BUREAU OF INDIAN AFFAIRS BECAUSE THE CAHTO TRIBE HAS NEVER EXPRESSLY REQUIRED THE BUREAU TO REVIEW THE TRIBE’S DECISIONS REMOVING MEMBERS.

The Government agrees that the overwhelming weight of authority in the

Supreme Court, this Court and other courts of appeals establishes “the fundamental

principle of Indian law that, unless limited by treaty or statute, Indian tribes have

the power to determine their own membership.” Answering Br. Fed. Appellees

(Dkt. 15) (“Gov’t Br.”) at 18-19; see also Appellant’s Opening Br. (Dkt. 8)

(“Opening Brief” or “Op. Br.”) at 14-17. The Government also concedes “that

under longstanding principles of Indian sovereignty and self-government, federal

intrusion into a question of tribal membership is contrary to law in the absence of

an express provision of tribal or federal law requiring such an intrusion.” Gov’t


4

Br. at 19 (emphasis supplied). Since the Government does not claim that any

federal law authorized the Bureau of Indian Affairs to review the Tribe’s 1995

decision removing the Sloans from the Tribe’s membership roll, the legal issue in

this case is whether any provision of tribal law “expressly required” that review.

The Government is plainly wrong that the Tribe’s Enrollment Ordinance expressly

requires BIA review of tribal decisions determining that existing members no

longer meet the Tribe’s criteria for membership eligibility, as we show below in

Part IA.

The Government also concedes that the BIA “must defer to the tribe’s

reasonable interpretations of its own laws.” Id. at 16; see also id. at 22. In the

Tribe’s Opening Brief, we set forth the Cahto Tribe’s interpretation of its own

Enrollment Ordinance as limiting BIA review to the Tribe’s decisions

disapproving initial applications for membership – and not decisions of the Tribe’s

General Council that an enrolled member no longer meets the eligibility criteria for

membership because the member has affiliated with another tribe, band or group to

the extent of participating in a distribution of resources belonging to another Indian

reservation. Op. Br. at 18-20. We show in Part IB below that this interpretation is

at the very least a “reasonable” construction by the Tribe of its own Enrollment

Ordinance, and thus is entitled to deference under the standard the Government

concedes applies in this case.


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Finally, in Part IC below we refute the Government’s claim that BIA review

of this decision removing the Sloans from membership is necessary to correct an

erroneous interpretation of federal law by the Tribe. We show that the eligibility

standards in the Tribe’s own governing documents arise under tribal – not federal –

law, and that the Tribe’s application of those standards presented no possible

violation of federal law and was in any event reasonable.

A. The Tribe’s Enrollment Ordinance does not expressly require the BIA to review tribal decisions removing members

The plain language of the Enrollment Ordinance does not expressly require,

let alone authorize, the BIA to review tribal decisions removing members from the

Cahto Tribal roll. Sections 2 through 7 of the Enrollment Ordinance3 all deal

expressly and exclusively with “applicants” or “applications” for enrollment. See

ER 084-085, 088; see also ER 087 (“Whereas” clause describing Section 5 as

addressing “the responsibility of approving and disapproving enrollment

applications . . . .”). Section 6 – the only section of the Ordinance authorizing BIA

review of any tribal membership decision – authorizes “a person disapproved for

enrollment” to appeal that disapproval to the BIA within certain time periods, and

provides that if the BIA “cannot sustain the decision of the general council,” it

3 Section 1 establishes the Tribe’s Executive Committee as the Enrollment Committee. ER 083.


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“shall instruct the general council to place the applicant’s name on the roll . . . .”

ER 088 (emphasis supplied).

The Government’s claim that Section 6 “clearly authorizes BIA’s action

here,” Gov’t Br. at 23, is squarely refuted by the words “applicant’s name” in the

very section the Government relies upon for BIA’s review authority.4 Persons

removed from the roll are plainly not “disapproved . . . applicants” for enrollment.

They are tribal members who were enrolled in the past but who were subsequently

removed from membership because they were improperly enrolled in the first place

or they no longer met the Tribe’s membership standards.

The only section of the Enrollment Ordinance that deals with removing

names from the roll – Section 8 – simply charges the Tribe’s Executive Committee

with “keeping the roll current by . . . (c) making corrections as necessary, including

4 As noted in our Opening Brief at 19, n.4, the BIA did not rely on Section 6 to support its decision now under review in this Court. Thus its decision cannot be sustained on grounds the agency itself did not rely on. Cal. Energy Comm’n v. Dep’t. of Energy, 585 F.3d 1143, 1150 (9th Cir. 2009) (stating that this Court reviews an agency’s interpretation of law “only on the basis of the reasoning articulated therein”). Amici Sloans make many factual assertions in their brief, e.g., Amicus Curiae Br. of Sloans (Dkt. 21-1) (“Amicus Br.”) at 2-5, 8-9, 11-13, 16-17, which the BIA similarly did not rely on in its decision, and the parties did not include in their presentations to the district court or this Court. Those assertions are also thus irrelevant to this appeal. Most of their assertions are nothing more than hearsay and speculation or were disputed in submissions to the BIA and Interior Board of Indian Appeals – which also did not decide such matters.


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deleting the names of persons on the roll . . . .” ER 085. The BIA Regional

Director concluded that “Section 8(c) of the ordinance was used by tribal

representatives as authority for the Sloan/Hecker family members’ disenrollment.”

ER039. But Section 8 confers no authority whatsoever on the BIA to review the

Executive Committee’s actions. Accordingly, the plain language of the Enrollment

Ordinance simply cannot be plausibly read as “expressly requiring” BIA review of

tribal membership decisions that do not involve the disapproval of applications for

enrollment.

Even assuming that the Ordinance were ambiguous on this point, all decided

cases mandate a narrow construction of the Enrollment Ordinance, a construction

which limits rather than expands BIA review authority. The Government concedes

that the Supreme Court’s decision in Santa Clara Pueblo v. Martinez, 436 U.S. 49

(1978), mandates a narrow construction of a federal statute to minimize the federal

law’s intrusion on a tribe’s sovereignty, Gov’t Br. at 27-28, but argues that a tribal

law authorizing federal review of tribal membership decisions should somehow be

read more expansively. Id. at 21. While the Government is correct that Santa

Clara Pueblo involved federal statutes and not tribal ones, id. at 20, the

Government provides no reason why a tribe’s conferral of authority on BIA to

review membership decisions should be construed more expansively than a

conferral of authority by Congress, and there is none. As we showed in our


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Opening Brief at 21-22, every court to consider the question has construed tribal

authorizations for the BIA to review tribal decisions narrowly – “so as to avoid any

unnecessary interference with a tribe’s right to self-government,” Wheeler v. U.S.

Dep’t of Interior, 811 F.2d 549, 553 (10th Cir. 1987), and “effect as little

disruption as possible of tribal sovereignty and self-determination.” Ransom v.

Babbitt, 69 F. Supp 2d 141, 151 (D.D.C. 1999). Indeed, contrary to its own

argument attempting to limit the meaning of Santa Clara Pueblo, the Government

concedes that any BIA “interpretation of tribal law must effect as little disruption

as possible of tribal sovereignty and self-determination.” Gov’t Br. at 22.5

5 Amici Sloans cite cases which address a different issue – waivers of tribal sovereign immunity – and then misstate the standard applicable to determining whether a tribe has waived its sovereign immunity. Amicus Br. at 18-19. Similar in certain respects to the standards required for a delegation of tribal authority to the BIA to review tribal decisions, the Supreme Court has consistently held that a waiver of sovereign immunity “‘cannot be implied but must be unequivocally expressed.’” Santa Clara Pueblo, 436 U.S. at 58 (citation omitted); see also C & L Enters. v. Citizen Band Potawatomi Indian Tribe of Okla., 532 U.S. 411, 418 (2001). The Sloans, however, misread the sovereign immunity cases to suggest that waivers may be implied and to contend that the courts will not defer to tribal interpretations of tribal law. Amicus Br. at 18-19. But the Supreme Court in C & L Enterprises simply found an express waiver to exist where the tribe explicitly agreed to be bound by an arbitration clause in a contract that anticipated enforcement in Oklahoma state courts. Since C & L Enterprises was decided, this Court has continued to narrowly construe the scope of such waivers, and repeatedly refused to imply waivers in the absence of express language. See, e.g., Allen v. Gold Country Casino, 464 F.3d 1044, 1047 (9th Cir. 2006) (employment policies referencing federal laws and equal opportunity did not waive immunity for employment claims); Linneen v.


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B. The Tribe’s interpretation of its Enrollment Ordinance is clearly reasonable and thus was entitled to deference by BIA

The Tribe’s interpretation of its Enrollment Ordinance is longstanding and

has been consistently applied – according to the Tribe’s records, the Tribe has

never allowed the BIA to review any removal decision. It is at the very least a

“reasonable” interpretation that is entitled to deference.

The Tribe’s Enrollment Ordinance on its face suggests why as a historical

matter the Tribe invited BIA review of its disapproval of initial enrollment

applications. The Ordinance’s second “Whereas” clause states that new enrollment

applications would be required from all tribal members when the ordinance took

effect in 1966 because “many of the persons named on the basic [October 31,

1944] census of the . . . (Tribe) no longer reside on the reservation, the

whereabouts of some being unknown, and for roll-making purposes current

information is needed for all persons eligible for membership . . . .” ER 083. The

BIA, by contrast, was given no power to review other tribal enrollment decisions –

such as granting applications for enrollment or when and whether to open and

Gila River Indian Comty., 276 F.3d 489, 492 (9th Cir. 2002) (“sue and be sued” clause in corporate charter did not waive immunity for governmental activities). Further, C & L Enterprises involved a commercial transaction and did not call for an interpretation of tribal law in relation to matters at the heart of tribal self-governance like enrollment.


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close enrollment periods.6 The language of the “Whereas” clause suggests that

BIA review power was confined to disapprovals of applications for enrollment so

the Tribe’s basic membership roll would be as complete as possible for an effort in

the late 1960s to update the roll after the passage of a substantial amount of time

and dispersal of tribal members and their descendants from the reservation.

The Government is also wrong that limiting BIA review to disapproved

applications for enrollment and excluding BIA review of removals of existing

members “leads to absurd results.” Gov’t Br. at 25-26. The Government posits

that a disenrolled member could obtain BIA review under the Tribe’s interpretation

of the Ordinance by simply submitting a new application for reenrollment – which, 6 Amici Sloans are plainly wrong in asserting that the Tribe “unequivocally consented to the jurisdiction of the federal government to review and approve all enrollment decisions” of the Tribe. Amicus Br. at 3 (emphasis in original); see also id. at 19 (“The Tribe’s charter documents are replete with references to the BIA and requires (sic) its approval before any enrollment decision is effective”); id. at 25 (“Tribe. . . consented to the BIA’s administrative review of any membership decisions”). A requirement that the Tribe’s “enrollment ordinance [must be] approved by the Commissioner of Indian Affairs,” Articles of Association of the Laytonville Rancheria, Art. III(B), ER 089, and provisions authorizing the BIA to review tribal disapprovals of enrollment “applicants” cannot be read as expressly requiring BIA approval of every enrollment action, as the Sloans would do. Nor can the provision in Section 7 of the Enrollment Ordinance that BIA certify the correctness of the tribal roll “after final decisions have been rendered on all applications,” ER 085 (emphasis supplied), be plausibly stretched into giving BIA the final word on enrollment decisions that do not involve applications for membership, such as the General Council’s removal of members no longer eligible for enrollment. Cf. Amicus Br. at 19-20.


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if the Tribe then disapproved, the Government claims could be reviewed by the

BIA.7 But this hypothetical ignores the facts of this case which does not involve

applications but rather a disenrollment decision.8 It also ignores Sections 2 and 4

of the Ordinance which provide that the Enrollment Committee shall designate

periods and places for the filing of applications for enrollment, and set the times

allotted for enrolling new members. ER 084. The Tribe is not obligated to open

enrollment and accept such theoretical applications. Historically, the Tribe has

opened enrollment infrequently. For example, since 1983, the Tribe has opened

enrollment only once, for a period in 2010 and 2011.

C. The Tribe’s decision to remove the Sloans from membership constituted the Tribe’s application of its own membership criteria, not an interpretation of federal law

The Government’s final defense of BIA’s usurpation of the Tribe’s control

over its own membership is a contention that the BIA’s decision wasn’t really 7 This rationale was not contained in the BIA’s 2009 decision under review or in the Government’s briefs before the district court. 8 The Government also posits under that Tribe’s “interpretation [of the Enrollment Ordinance] . . . it could approve an application for enrollment, and then immediately disenroll its newly-enrolled member, effectively negating the right to appeal provided by the enrollment ordinance.” Gov’t Br. at 26. The Tribe does not claim that such a bad faith circumvention of the BIA’s express review power in its Ordinance would be valid. The Government’s hypotheticals do not remotely represent the facts of this case, where the Sloans were properly enrolled at one point in time and then removed from membership many years later because subsequent actions they had taken demonstrated they were no longer eligible for membership.


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intrusive of the Tribe’s sovereignty at all, because BIA was merely correcting the

Tribe’s “clear misinterpretation of federal law.” Gov’t Br. at 32 (emphasis in

original).

The first fatal flaw in the Government’s argument is that the membership

eligibility standard in the Tribe’s Articles of Association (Art. III(A)(3)(c), ER

089) and Enrollment Ordinance (Section 2, ER 084) – barring from membership

persons who “have been affiliated with any other tribe, group or band to the extent

of . . . having been named as a distributee or dependent of a distributee in a

reservation distribution plan” – does not constitute a standard of federal law. As

we showed in our Opening Brief at 22-23 n.6, the term “reservation distribution

plan” does not appear in the Hoopa-Yurok Settlement Act or any other federal

statute.9

Far from being an interpretation of “federal law,” the Tribe’s determination

that the Sloans had “affiliated with” another tribe, band or group was an

application of language in the Tribe’s own Articles of Association and Enrollment

Ordinance and constituted a determination by the Tribe of a question of its own 9 While the Government claims that the term “reservation distribution plan . . . ordinarily refers to . . . a plan” for distributing the assets of a reservation or rancheria to individual Indians under the California Rancheria Termination Act of 1958, Gov’t Br. at 32, n.4, the term “reservation distribution plan” does not appear in that statute either. The Government offers no support whatsoever for its assertion that the “ordinary” meaning of the term “reservation distribution plan” refers solely to distributions of assets of a terminated rancheria under the 1958 Act.


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law.10 The Tribe reasonably applied this standard and determined that the Sloans –

by electing to receive a lump sum payment from the Hoopa-Yurok Settlement

Fund established in the Hoopa-Yurok Settlement Act – had “affiliated with another

tribe, band or group to the extent of” receiving a distribution of assets from another

reservation. The Government concedes that the Settlement Fund established in

that Act contained “proceeds from reservation resources,” Gov’t Br. at 31 – as

indeed it did.11

The Government’s profession of innocence that it “has done nothing to

disrupt the Tribe’s eligibility requirements or enrollment procedures,” Gov’t Br. at 10 Even if the standard in the Tribe’s Articles and Enrollment Ordinance were a standard established by federal – rather than tribal – law, that would not deprive the Tribe of authority to apply that federal law standard free of BIA interference. The Supreme Court held in Santa Clara Pueblo, 436 U.S. 65-66 and n.22, that the Pueblo’s Tribal Council was the proper entity to conclusively apply the standard in the Indian Civil Rights Act, that no tribe may “deny to any person within its jurisdiction the equal protection of its laws” without being subject to review by a federal court. That of course unquestionably represented an application of federal law by the Tribal Council. 11 The Hoopa-Yurok Settlement Act, 25 U.S.C. § 1300i-3, required the Secretary to deposit “all the funds in the escrow funds” into the Settlement Fund – “escrow funds” being defined in the Act as meaning “money derived from the joint reservation . . .” and held in seven trust accounts enumerated in the statute. 25 U.S.C. § 1300i(b)(1). And to be eligible to participate in the distribution of the Settlement Fund, the Sloans had to be included on a Hoopa-Yurok Settlement roll “of all persons who can meet the criteria for eligibility as an Indian of the Reservation,” 25 U.S.C. § 1300i-4(a)(1), irrespective of whether the distributee is a member of either the Hoopa or Yurok Tribes. The term “Indian of the Reservation” also is a defined term in the Act. Id. at § 1300i(b)(5); see also Gov’t Br. at 3-4.


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30, wildly misrepresents the facts of this situation. The BIA has ordered the Tribe

to enroll more than 20 individuals whom the Tribe has found repeatedly over the

course of nearly two decades are ineligible under tribal law for enrollment in the

Tribe – including in: (1) 1995 when the General Council, by a vote of 37 to 0, ER

080, made the initial decision to disenroll them; (2) 1999 when the Tribe

reaffirmed that decision, SER 10-12, including in the results of a survey showing

36 tribal members continued to support the decision; (3) 2010 when the Tribe’s

General Council12 authorized filing this action; and (4) 2011 when the General

Council authorized this appeal by a referendum vote. Each of these four times the

Tribe had the opportunity to consider whether the Sloans were entitled to

membership and each time the Tribe determined to stand by its initial decision in

12 Amici Sloans’ repeated assertion that the General Council is a “faction” and does not represent the Tribe, e.g. Amicus Br. at 2, is refuted by the fact that a majority of the tribal membership meeting in quorum has repeatedly taken actions to affirm and defend its original 1995 decision. The assertion is further refuted by the fact that the BIA maintained a government-to-government relationship with the Tribe throughout this period recognizing the Tribe’s election of leaders and, in 2006, approving the Tribe’s referendum election on updated Articles of Association. The Regional Director found that the 2006 referendum election was “conducted in accordance with Article XI” of the 1967 Articles of Association and approved the new Articles, Appellant’s Supplemental Excerpts of Record (“ASER”) 2; see also id. at 1, 3, notwithstanding the fact that the Tribe did not allow the Sloans to vote in the election. Here – unlike California Valley Miwok Tribe v. United States, 515 F.3d 1262 (D.C. Cir. 2008), relied upon by Amici, Amicus Br. at 23 – the Cahto Tribe’s existing governing body has been recognized and dealt with by the Interior Department throughout the almost 17 years of this controversy.


15

1995 that they are ineligible. The BIA would disrupt the Tribe’s enrollment

procedures by telling the Tribe how to construe the definition of “affiliated with

another tribe, band or group” within the meaning of a core provision of the Tribe’s

own Articles of Association defining who is entitled to be a tribal member.13 The

Government’s suggestion that the Tribe’s request in 1995 for BIA, in carrying out

the government-to-government relationship with the Tribe, to recognize the effect

of the Tribe’s disenrollment decision on tribal leadership somehow supports BIA’s

effort 14 years later to undo that action, Gov’t Br. at 30, is refuted by these

repeated efforts by the Tribe over nearly two decades to keep the BIA out of its

internal business.14

13 The disruption is compounded by the fact that only nine of the disenrolled individuals seek re-enrollment in Cahto. Amicus Br. at 1 n.1; ER 079; SER 10. The Tribe believes that many of the remainder have since enrolled in other tribes thus making them ineligible under Article III(A)(3)(a) prohibiting enrollment of a person who affiliates with another tribe by “being included on a formal membership roll.” ER 089. 14 The letter relied by the Government and the Sloans merely requested that the BIA confirm to third parties that the leadership of the Tribe had changed as a result of the disenrollments, not that the BIA had authority to review the decision. SER 40 (expressing concern that “personnel from the Bureau of Indian Affairs have informed the banks and other persons doing business with the Tribe” erroneously that individuals who had been disenrolled were still the chairperson and vice-chairperson of the Tribe and requesting that the BIA “confirm in writing . . . that the Bureau . . . will recognize the existing tribal leaders . . . .”). Furthermore, the Board’s finding in its 2002 decision in Cahto Tribe, ER 045, based on its review of the same documents, that if there were any delegation of authority, it expired with the BIA’s response to one of those letters and had no further effect, is determinative regarding the effect of such correspondence. The Government and


16

II. ALTERNATIVELY, THE INTERIOR BOARD OF INDIAN APPEALS’ 2002 DECISION REQUIRED THE BIA TO RECOGNIZE THE TRIBE’S 1995 DECISION REMOVING THE SLOANS FROM THE TRIBAL MEMBERSHIP ROLL, AND BARRED THE BIA FROM SUBSEQUENTLY UNDOING THE TRIBE’S DECISION IN THE GUISE OF RESOLVING THE SLOANS’ ADMINISTRATIVE APPEAL.

As set forth in our Opening Brief at 2-4, in 2002 the Interior Board of Indian

Appeals ruled in Cahto Tribe of Laytonville Rancheria v. Pacific Regional

Director, BIA, 38 IBIA 244 (2002), ER 042-048, that the BIA did not have

authority to review the Tribe’s 1995 disenrollment decision and, because of the

BIA’s lack of authority, vacated the Regional Director’s decision declining to

recognize the Tribe’s removal of the Sloans from the tribal membership roll. In so

ruling, the Board undertook a detailed analysis of the law and concluded that the

Regional Director’s decision was contrary to controlling case law which vested the

authority to decide membership matters in tribes free from federal intervention.

See ER 044-047 (citing Santa Clara Pueblo, Smith v. Babbitt, 100 F.3d 556, 559

(8th Cir. 1996) and Ordinance 59 Ass’n v. U.S. Dep’t of the Interior, 163 F.3d

1150 (10th Cir. 1998)). The Board’s decision concluded that: “No matter how

strongly BIA believed the Tribe to be in error in the case, nothing presently before

the Board shows that BIA had any jurisdiction in the circumstances in which the

the Sloans as parties to the proceeding before the Board are bound by its determination on this question. See Part II infra.


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issue arose, to render a decision in the Tribe’s enrollment dispute.” ER 047. In

vacating the Regional Director’s decision, the Board further expressly stated that it

was not remanding the case to the Regional Director for any further proceedings

“because there is no evident need for action on his part.” ER 048 n.4. The

Interior Department’s regulations provide that the Board’s determination was final

for the Department. 43 C.F.R. §4.312. The Regional Director was a party to the

proceeding before the Board and was bound by its decision, and precluded from

thereafter from refusing to recognize the Tribe’s removal decision, whether in the

guise of resolving a allegedly pending administrative appeal or otherwise.

None of the arguments advanced by the Government alter the controlling

effect of the Board’s decision in this matter.

First, the Government entirely mischaracterizes the Board’s decision.

Although the Board plainly stated that “nothing presently before the Board shows

that BIA had any jurisdiction, in the circumstances in which the issue arose, to

render a decision in the Tribe’s disenrollment dispute,” the Government rewrites

the Board’s decision as if it were a holding “that no basis existed for the Tribe’s

appeal from [the Regional Director’s] . . . decision.” Gov’t Br. at 1. Nothing in

the Board’s decision or the history of those proceedings supports the Government’s

revisionist view of the Board’s decision. After the BIA refused to recognize the

Tribe’s 1995 removal decision, the Tribe pursued the administrative appeal in


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accord with the appeal procedures expressly prescribed by the BIA.15 The

Regional Director and the Sloans were parties to that appeal. The Tribe then won

its appeal by establishing that the Board lacked authority to review the Tribe’s

disenrollment decision, and the Board vacated the Regional Director’s decision

declining to recognize the Tribe’s 1995 removal decision.

Prior to the Board’s decision, the BIA had two possible courses of action:

either to recognize the Tribe’s removal decision or to withhold recognition. After

the Board’s decision, the only lawful course for the BIA was to recognize the

Tribe’s removal decision. Indeed, the Regional Director followed just that course

for nearly seven years following the 2002 decision. During that period and until

2009, the BIA, including the Regional Director, treated the removal matter as fully

resolved by the Board’s 2002 decision. During this period, the BIA engaged in

15 ER 073-075 (Regional Director’s 2000 decision); 076-077 (Superintendent’s 2000 decision). In their amicus brief, the Sloans erroneously contend that the Tribe appealed to the wrong forum. Amicus Br. at 14. But the BIA claimed authority to act in this matter and expressly advised the Tribe of the procedures for appealing the BIA’s decision directing that any appeal from the Regional Director’s decision be made to the Board. ER 074-075. Furthermore, the Sloans themselves advised the Board that they “do not dispute IBIA’s jurisdiction over this appeal.” ER 059 n.14. The Board clearly adjudicated its jurisdiction over the appeal and resolved it in favor of finding it had jurisdiction to review the BIA’s 2000 decisions on the disenrollment matter. Cahto Tribe, supra. Having affirmatively supported the Board’s jurisdiction then, the Sloans are estopped from attacking it now. New Hampshire v. Maine, 532 U.S. 742, 749-50 (2001); United States v. Liquidators of European Fed. Credit Bank, 630 F.3d 1139, 1148-49 (9th Cir. 2011).


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regular government-to-government relations with the Tribe and BIA never even

suggested that there were any unresolved issues or pending appeals from the

Tribe’s 1995 removal decision.16

But in March 2009, the BIA abruptly reversed course. Announcing that the

appeals which the Sloans had submitted to the BIA nearly ten years earlier – in

1999 – were pending and remained unresolved, the Regional Director in his 2009

decision assumed authority to decide the validity of the Tribe’s 1995 disenrollment

decision and then effectively reinstated the substantive decision that had been

vacated by the Board. The Regional Director’s 2009 decision completely ignored

the Board’s decision, improperly treating it as a nullity. The Government cannot

now defend this action by rewriting the Board’s decision.

Second, in its effort to avoid the preclusive effect of the 2002 Board

decision, the Government completely misstates the argument contained in the

Tribe’s Opening Brief. While the Tribe clearly stated that “the issue of the BIA’s

authority to review the Tribe’s 1995 disenrollment action was actually litigated in

the proceedings before the Board,” Op. Br. at 29 (emphasis supplied), the

Government quotes only a fragment of that sentence – erroneously claiming that 16 See ER 009 (finding that from the date of the IBIA’s 2002 decision until shortly before March 2009 “the Tribe heard nothing from the Bureau of Indian Affairs to suggest that any issues regarding . . . the Tribe’s September 19, 1995 decision were unresolved or pending”); ASER 7 ¶ 25 (Gov’t concession to same effect); see also supra note 12.


20

the Tribe had argued that “‘the Tribe’s 1995 disenrollment action was actually

litigated in the proceedings before the Board.’” Gov’t Br. at 36. With this

misstatement of the Tribe’s position, the Government then asserts that because the

merits of the enrollment matter were not actually litigated before the Board, the

Board’s decision is not binding under principles of res judicata or collateral

estoppel. Id.

There is no dispute that the issue of the BIA’s authority to review the Tribe’s

decision in this matter was actually litigated in the proceedings before the Board,17

and was the basis for the Board’s decision in the matter. ER 044-047. By setting

aside a decision of the Regional Director refusing to recognize the Tribe’s

determination removing the Sloans from membership, the Board’s decision bound

the Regional Director to thereafter recognize the validity of the Tribe’s decision.

As a party to the Tribe’s appeal, the Regional Director was also required to

raise any arguments before the Board which he believed supported his decision or

his authority to act. See Op. Br. at 33-34. The Regional Director did not argue that

he had authority under 25 C.F.R. Part 62 to render a decision concerning the

removal of the Sloans, or ask the Board to refer the Tribe’s appeal to the Assistant

17 See ASER 6-7 ¶¶ 18-20 (Government did not dispute that the BIA’s authority to review the Tribe’s 1995 disenrollment action was litigated in the proceedings before the IBIA and that the Regional Director had an opportunity to be heard on the matter, including with respect to jurisdiction).


21

Secretary-Indian Affairs to consider the matter under Part 62.18 His decision not to

do so does not alter the preclusive effect of the Board’s decision.

Third, the Government’s remaining arguments fail for the fundamental

reason that they cannot be reconciled with the Board’s actual disposition of the

case. The Board chose not to remand the case to the Regional Director for a

determination whether BIA authority to act might exist under Part 62. Instead the

Board vacated the Regional Director’s decision and plainly stated that “[t]he Board

does not remand this matter to the Regional Director because there here is no

evident need for action on his part.” ER 048 n.4. The Government makes no

mention whatsoever of this critical element of the Board’s decision. Instead, the

Government response is limited to only questioning whether the Board could have

remanded the matter, contending that the Tribe misstated the holding of another

Board decision, B.B v. Rocky Mountain Regional Director, BIA, 39 IBIA 48

(2003). Gov’t Br. at 37. That case in fact supports the Tribe’s argument that the

Board could have remanded the matter to the Regional Director or referred it to the

Assistant Secretary for further proceedings under Part 62 but did not, and that its

18 The Board in the 2002 invited argument on the applicability of 25 C.F.R. Part 62, that issue was briefed by the Tribe, and the Board found Part 62 inapplicable because neither the Superintendent nor the Regional Director had claimed to act pursuant to that authority. See Op. Br. at 31 and n.10.


22

determination not to remand the appeal or refer it to the Assistant Secretary is an

integral part of the Board’s disposition of the appeal.19

The Government also completely fails to explain how the Regional Director,

whose decision on the disenrollment matter was vacated for lack of jurisdiction

without any remand, could nevertheless subsequently assume jurisdiction over the

very same controversy. The Board’s decision that the Regional Director lacked

jurisdiction over this controversy, its action in vacating the Regional Director’s

decision, and its refusal to remand the matter to the Regional Director because

“there was no evident need for action on his part” was a final decision binding on

the BIA that encompassed all issues that were relevant to the question of the BIA’s

jurisdiction to review the Tribe’s 1995 decision.

To be sure, the Board’s decision in 2002 was based on the “circumstances”

then before the Board. But no pertinent circumstances changed between the

Board’s 2002 decision and the Regional Director’s 2009 decision. As we showed

19 The Tribe’s position is further supported by Vedolla v. Acting Pacific Regional Director, BIA, 43 IBIA 151, 154 (2006), in which the Board of Indian Appeals referred an appeal to the Assistant Secretary for review when it found it lacked jurisdiction to review under Part 62, and by the other cases cited in our Opening Brief at 33-34 holding that a party may not raise an issue in a subsequent proceeding that it could have raised in a prior proceeding – even when the issue involves questions of jurisdiction. E.g., Stratosphere Litig. LLC v. Grand Casinos, Inc., 298 F.3d 1137, 1142 (9th Cir. 2002) (“A party that has had an opportunity to litigate the question of subject-matter jurisdiction may not reopen that question in a collateral attack upon an adverse judgment.”) (citations omitted).


23

in our Opening Brief at 29-31 and n.9, both the 2002 proceeding before the Board

and the 2009 proceeding before the Regional Director arose out of “the same

transaction,” Castillo v. Pac. Reg’l Dir., BIA, 46 IBIA 209, 212 n.5 (2008); Mpoyo

v. Litton Electro-Optical Sys., 430 F.3d 985, 987-88 (9th Cir. 2005), and involved

exactly the same administrative record and same facts – as well as the same issue:

the Tribe’s right to be free from BIA’s interference in an internal membership

matter. The Board’s decision in 2002 therefore precluded the Regional Director in

2009 from once again deciding to withhold recognition from the Tribe’s

membership determination.

CONCLUSION

For the reasons set out above and in the Tribe’s Opening Brief, the district

court decision should be reversed, and summary judgment should be entered in

favor of the Tribe.

May 11, 2012 Respectfully submitted,

SONOSKY, CHAMBERS, SACHSE, ENDRESON & PERRY, LLP

By /s/ Colin Cloud Hampson Colin Cloud Hampson Attorneys for Appellant Cahto Tribe of the

Laytonville Rancheria


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CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitation of Fed. R, App. P. 32(a)(7)(B) because: x this brief contains 6,338 words, excluding the parts of the brief

exempted by Fed. R. App. P. 32(a)(7)(B)(iii) or this brief uses a monospaced typeface and contains _____ lines of

text, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because: this brief has been prepared in a proportionally spaced typeface using

Word 2007, 14-point proportionally spaced, Times New Roman typeface.

this brief has been prepared in a monospaced typeface using (state

name and version of word processing program) ________________ with (state number of characters per inch and name of type style)

______________________________________________________. Signature /s/ Colin Cloud Hampson Colin Cloud Hampson Attorney for Cahto Tribe of the Laytonville Rancheria Date May 11, 2012


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STATUTORY ADDENDUM

TABLE OF CONTENTS

§ 1300i……………………………………………………………………………26 § 1300i-3………………………………………………………………………….28 § 1300i-4………………………………………………………………………….30


26

STATUTORY ADDENDUM Except for the following, all applicable statutes, etc., are contained in the brief or addendum of Appellant’s Opening Brief. § 1300i. Short title and definitions (a) Short title

This subchapter may be cited as the “Hoopa-Yurok Settlement Act”. (b) Definitions For the purposes of this subchapter, the term--

(1) “Escrow funds” means the moneys derived from the joint reservation which are held in trust by the Secretary in the accounts entitled--

(A) “Proceeds of Labor-Hoopa Valley Indians-California 70 percent

Fund, account number J52-561-7197”;

(B) “Proceeds of Labor-Hoopa Valley Indians-California 30 percent Fund, account number J52-561-7236”;

(C) “Proceeds of Klamath River Reservation, California, account

number J52-562-7056”;

(D) “Proceeds of Labor-Yurok Indians of Lower Klamath River, California, account number J52-562-7153”;

(E) “Proceeds of Labor-Yurok Indians of Upper Klamath River,

California, account number J52-562-7154”;

(F) “Proceeds of Labor-Hoopa Reservation for Hoopa Valley and Yurok Tribes, account number J52-575-7256”; and

(G) “Klamath River Fisheries, account number 5628000001”;

(2) “Hoopa Indian blood” means that degree of ancestry derived from an Indian of the Hunstang, Hupa, Miskut, Redwood, Saiaz, Sermalton, Tish-


27

Tang-Atan, South Fork, or Grouse Creek Bands of Indians;

(3) “Hoopa Valley Reservation” means the reservation described in section 1300i-1(b) of this title;

(4) “Hoopa Valley Tribe” means the Hoopa Valley Tribe, organized under the constitution and amendments approved by the Secretary on November 20, 1933, September 4, 1952, August 9, 1963, and August 18, 1972;

(5) “Indian of the Reservation” shall mean any person who meets the criteria to qualify as an Indian of the Reservation as established by the United States Court of Claims in its March 31, 1982, May 17, 1987, and March 1, 1988, decisions in the case of Jesse Short et al. v. United States, (Cl. Ct. No. 102-63);

(6) “Joint reservation” means the area of land defined as the Hoopa Valley Reservation in section 1300i-1(b) of this title and the Yurok Reservation in section 1300i-1(c) of this title. [FN1]

(7) “Karuk Tribe” means the Karuk Tribe of California, organized under its constitution on April 6, 1985;

(8) “Secretary” means the Secretary of the Interior;

(9) “Settlement Fund” means the Hoopa-Yurok Settlement Fund established pursuant to section 1300i-3 of this title;

(10) “Settlement Roll” means the final roll prepared and published in the Federal Register by the Secretary pursuant to section 1300i-4 of this title;

(11) “Short cases” means the cases entitled Jesse Short et al. v. United States, (Cl. Ct. No. 102-63); Charlene Ackley v. United States, (Cl. Ct. No. 460-78); Bret Aanstadt v. United States, (Cl. Ct. No. 146-85L); and Norman Giffen v. United States, (Cl. Ct. No. 746-85L);

(12) “Short plaintiffs” means named plaintiffs in the Short cases;

(13) “trust land” means an interest in land the title to which is held in trust by the United States for an Indian or Indian tribe, or by an Indian or Indian tribe subject to a restriction by the United States against alienation;


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(14) “unallotted trust land, property, resources or rights” means those lands, property, resources, or rights reserved for Indian purposes which have not been allotted to individuals under an allotment Act;

(15) “Yurok Reservation” means the reservation described in section 1300i-1(c) of this title; and

(16) “Yurok Tribe” means the Indian tribe which is recognized and authorized to be organized pursuant to section 1300i-8 of this title.

§ 1300i-3. Hoopa-Yurok Settlement Fund (a) Establishment

(1) There is hereby established the Hoopa-Yurok Settlement Fund. Upon enactment of this subchapter, the Secretary shall cause all the funds in the escrow funds, together with all accrued income thereon, to be deposited into the Settlement Fund.

(2) Until the distribution is made to the Hoopa Valley Tribe pursuant to section [FN1] (c) of this section, the Secretary may distribute to the Hoopa Valley Tribe, pursuant to section 123c of this title, not to exceed $3,500,000 each fiscal year out of the income or principal of the Settlement Fund for tribal, non per capita purposes: Provided, however, That the Settlement Fund apportioned under subsections (c) and (d) of this section shall be calculated without regard to this subparagraph, but any amounts distributed under this subparagraph shall be deducted from the payment to the Hoopa Valley Tribe pursuant to subsection (c) of this section.

(3) Until the distribution is made to the Yurok Tribe pursuant to section [FN1] (d) of this section, the Secretary may, in addition to providing Federal funding, distribute to the Yurok Transition Team, pursuant to section 123c of this title, not to exceed $500,000 each fiscal year out of the income and principal of the Settlement Fund for tribal, non per capita purposes: Provided, however, That the Settlement Fund apportioned under subsections (c) and (d) of this section shall be calculated without regard to this subparagraph, but any amounts distributed under this subparagraph shall be deducted from the payment to the Yurok Tribe pursuant to subsection (d) of


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this section. (b) Distribution; investment The Secretary shall make distribution from the Settlement Fund as provided in this subchapter and, pending payments under section 1300i-5 of this title and dissolution of the fund as provided in section 1300i-6 of this title, shall invest and administer such fund as Indian trust funds pursuant to section 162a of this title. (c) Hoopa Valley Tribe portion Effective with the publication of the option election date pursuant to section 1300i-5(a)(4) of this title, the Secretary shall immediately pay out of the Settlement Fund into a trust account for the benefit of the Hoopa Valley Tribe a percentage of the Settlement Fund which shall be determined by dividing the number of enrolled members of the Hoopa Valley Tribe as of the date of the promulgation of the Settlement Roll, including any persons enrolled pursuant to section 1300i-5 of this title, by the sum of the number of such enrolled Hoopa Valley tribal members and the number of persons on the Settlement Roll. (d) Yurok Tribe portion Effective with the publication of the option election date pursuant to section 1300i-5(a)(4) of this title, the Secretary shall pay out of the Settlement Fund into a trust account for the benefit of the Yurok Tribe a percentage of the Settlement Fund which shall be determined by dividing the number of persons on the Settlement Roll electing the Yurok Tribal Membership Option pursuant to section 1300i-5(c) of this title by the sum of the number of the enrolled Hoopa Valley tribal members established pursuant to subsection (c) of this section and the number of persons on the Settlement Roll, less any amount paid out of the Settlement Fund pursuant to section 1300i-5(c)(3) of this title. (e) Federal share There is hereby authorized to be appropriated the sum of $10,000,000 which shall be deposited into the Settlement Fund after the payments are made pursuant to subsections (c) and (d) of this section and section 1300i-5(c) of this title. The Settlement Fund, including the amount deposited pursuant to this subsection and all income earned subsequent to the payments made pursuant to subsections (c) and (d) of this section and section 1300i-5(c) of this title, shall be available to


30

make the payments authorized by section 1300i-5(d) of this title.

§ 1300i-4. Hoopa-Yurok Settlement Roll (a) Preparation; eligibility criteria

(1) The Secretary shall prepare a roll of all persons who can meet the criteria for eligibility as an Indian of the Reservation and--

(A) who were born on or prior to, and living upon, October 31, 1988;

(B) who are citizens of the United States; and

(C) who were not, on August 8, 1988, enrolled members of the Hoopa

Valley Tribe.

(2) The Secretary's determination of eligibility under this subsection shall be final except that any Short plaintiff determined by the United States Court of Federal Claims to be an Indian of the Reservation shall be included on the Settlement Roll if they meet the other requirements of this subsection and any Short plaintiff determined by the United States Court of Federal Claims not to be an Indian of the Reservation shall not be eligible for inclusion on such roll. Children under age 10 on the date they applied for the Settlement Roll who have lived all their lives on the Joint Reservation or the Hoopa Valley or Yurok Reservations, and who otherwise meet the requirements of this section except they lack 10 years of Reservation residence, shall be included on the Settlement Roll.

(b) Right to apply; notice Within thirty days after October 31, 1988, the Secretary shall give such notice of the right to apply for enrollment as provided in subsection (a) of this section as he deems reasonable except that such notice shall include, but shall not be limited to--

(1) actual notice by registered mail to every plaintiff in the Short cases at their last known address;

(2) notice to the attorneys for such plaintiffs; and


31

(3) publication in newspapers of general circulation in the vicinity of the Hoopa Valley Reservation and elsewhere in the State of California.

Contemporaneous with providing the notice required by this subsection, the Secretary shall publish such notice in the Federal Register.

(c) Application deadline The deadline for application pursuant to this section shall be established at one hundred and twenty days after the publication of the notice by the Secretary in the Federal Register as required by subsection (b) of this section. (d) Eligibility determination; final roll

(1) The Secretary shall make determinations of eligibility of applicants under this section and publish in the Federal Register the final Settlement Roll of such persons one hundred and eighty days after the date established pursuant to subsection (c) of this section.

(2) The Secretary shall develop such procedures and times as may be necessary for the consideration of appeals from applicants not included on the roll published pursuant to paragraph (1). Successful appellants shall be added to the Settlement Roll and shall be afforded the right to elect options as provided in section 1300i-5 of this title, with any payments to be made to such successful appellants out of the remainder of the Settlement Fund after payments have been made pursuant to section 1300i-5 (d) of this title and prior to division pursuant to section 1300i-6 of this title.

(3) Persons added to the Settlement Roll pursuant to appeals under this subsection shall not be considered in the calculations made pursuant to section 1300i-3 of this title.

(4) For the sole purpose of preparing the Settlement Roll under this section, the Yurok Transition Team and the Hoopa Valley Business Council may review applications, make recommendations which the Secretary shall accept unless conflicting or erroneous, and may appeal the Secretary's decisions concerning the Settlement Roll. Full disclosure of relevant records shall be made to the Team and to the Council notwithstanding any other provision of law.


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(e) Effect of exclusion from roll No person whose name is not included on the Settlement Roll shall have any interest in the tribal, communal, or unallotted land, property, resources, or rights within, or appertaining to, the Hoopa Valley Tribe, the Hoopa Valley Reservation, the Yurok Tribe, or the Yurok Reservation or in the Settlement Fund unless such person is subsequently enrolled in the Hoopa Valley Tribe or the Yurok Tribe under the membership criteria and ordinances of such tribes.


I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on (date) . I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

CERTIFICATE OF SERVICE When All Case Participants are Registered for the Appellate CM/ECF System

I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on (date) . Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system. I further certify that some of the participants in the case are not registered CM/ECF users. I have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it to a third party commercial carrier for delivery within 3 calendar days to the following non-CM/ECF participants:

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CERTIFICATE OF SERVICE When Not All Case Participants are Registered for the Appellate CM/ECF System

9th Circuit Case Number(s)

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NOTE: To secure your input, you should print the filled-in form to PDF (File > Print > PDF Printer/Creator).

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Barbara M.R. Marvin, Trial Attorney Ignacia S. Moreno, Assistant Attorney General United States Department Of Justice United States Department Of Justice Environment and Natural Environment and Natural Resources Resources Division Resources Division 601 D Street, N.W. 601 D Street, N.W. Washington, DC 20004 Washington, DC 20004

11-17847

May 11, 2012

/s/ Karin Bustamante


Documents

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT · Case No. 2:10-cv-01306 APPELLANT’S REPLY BRIEF Colin Cloud Hampson Reid Peyton Chambers SONOSKY, CHAMBERS, SACHSE, SONOSKY,