Interior Motion to Dismiss

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1 TABLE OF CONTENTS 2 INTRODUCTION...... 1 3 STATEMENT OF FACTS...... 2 4 ARGUMENT...... 6 5 I. Standards For Deciding Motions To Dismiss ...... 6 6 A. Motions to dismiss under F.R.C.P. 12(b)(1)...... 6 7 B. Motions to Dismiss under Fed. R. Civ. P. 12(b)(6)...... 7 8 II. Plaintiffs’ Challenge To The Two Echo Hawk Decisions Is Not Justiciable...... 8 9 III. The Court Lacks Jurisdiction Over The Second Claim For 10 Relief, Which Is Not Premised On Questions Of Federal Law...... 11 11 IV. The Court Lacks Jurisdiction Over The Third Claim For Multiple Reasons...... 13 12 V. The Court Lacks Jurisdiction Over The Fifth Claim For 13 Relief, Which Does Not Cite Any Specific Underlying Law...... 14 14 VI. Plaintiffs’ Fourth Claim For Relief Should Be Dismissed...... 15 15 A. The Echo Hawk Decisions Ended The Hiatus In Federal Recognition Of A Tribal Government...... 15 16 B. Plaintiffs’ Challenge To The So-Called “Rollback 17 Rule” Should Be Dismissed...... 16 18 VII. Plaintiffs’ First Claim Fails To State A Claim For Violations of Departmental Regulations Or The Due Process Clause...... 17 19 VIII Plaintiff’s Sixth Claim for Relief Fails to State a Claim...... 18 20 21 CONCLUSION...... 20 22 23 24 25 26 27

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TABLE OF AUTHORITIES 1 FEDERAL CASES 2 A-Z International v. Phillips, 3 323 F.3d 1141 (9th Cir. 2003)...... 7 4 Albright v. Oliver, 510 U.S. 266, 114 S. Ct. 807, 127 L. Ed. 2d 114 (1994)...... 19 5 Apodaca v. Silvas, 6 19 F.3d 1015 (5th Cir. 1994)...... 11 7 Ashcroft v. Iqbal, 556 U.S. 662 (2009)...... 7 8 Balistreri v. Pacifica Police Department, 9 901 F.2d 696 (9th Cir. 1990)...... 7 10 Bell At.. Corp. v. Twombly, 550 U.S. 544 (2007)...... 7, 8 11 Bd. of Regents v. Roth, 12 408 U.S. 564 (1972)...... 17 13 Califano v. Sanders, 430 U.S. 99 (1977)...... 11 14 City of Erie v. Pap's A.M., 15 529 U.S. 277 (2000)...... 15 16 Corrie v. Caterpillar, Inc., 503 F.3d 974 (9th Cir. 2007)...... 10 17 Daniels-Hall v. National Education Association, 18 629 F.3d 992 (9th Cir. 2010)...... 8 19 Deakins v. Monaghan, 484 U.S. 193 (1988)...... 15 20 Empire Healthchoice Assurance Inc. v. McVeigh, 21 547 U.S. 677, 126 S. Ct. 2121 (2006)...... 12 22 Franchise Tax Board of Cal. v. Construction Laborers Vacation Trust for S. Cal., 463 U.S. 1, 103 S. Ct. 2841 (1983)...... 12 23 Goodface v. Grassrope, , 24 708 F.2d 335 (8th Cir. 1983)...... 9, 13, 17 25 Hells Canyon Preserv. Council v. U.S. Forest Serv., 593 F.3d 923 (9th Cir. 2010)...... 17 26

27 Johnson v. Rancho Santiago Committee College District, 623 F.3d 1011 (9th Cir. 2010)...... 17 28

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1 Kahawaiolaa v. Norton, 386 F.3d 1271 (9th Cir. 2004), quoting Miami Nation v. U.S. Department of 2 Interior, 255 F.3d 342 (7th Cir. 2001)...... 9 3 Kokkonen v. Guardian Life Insurance Co. of America, 511 U.S. 375 (1994)...... 7 4 Kwai Fun Wong v. United States, 5 373 F.3d 952 (9th Cir. 2004)...... 17 6 Lewis v. Continental Bank Corp., 494 U.S. 472 (1990)...... 15 7 Lewis v. Norton, 8 424 F.3d 959 (9th Cir. 2005)...... 10 9 Malone v. BIA, 38 F.3d 433 (9th Cir. 1994)...... 17 10 Marbury v. Madison, 11 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803)...... 8 12 McCarthy v. United States, 850 F.2d 558 (9th Cir. 1988)...... 7 13 North Star International v. Arizona Corp. Commission, 14 720 F.2d 578 (9th Cir. 1983)...... 7 15 Norton v. Southern Utah Wilderness Alliance ("SUWA"), 542 U.S. 55 (2004)...... 8 16 Oetjen v. Central Leather Co., 17 246 U.S. 297 (1918)...... 9 18 Or. Natural Resource Council v. Thomas, 92 F.3d 792 (9th Cir. 1996), quoting Heckler v. Chaney, 470 U.S. 821 (1985)...... 14, 15 19 Outdoor Media Group, Inc. v. City of Beaumont, 20 506 F.3d 895 (9th Cir. 2007)...... 15 21 Pan-America World Airways v. U.S. District Ct. For Central District Of CA, 523 F.2d 1073 (9th Cir. 1975)...... 17 22 Potts v. Bruce, 23 533 F.2d 527 (10th Cir. 1976)...... 10 24 Proctor v. Vishay Intertechnology, Inc., 584 F.3d 1208 (9th Cir. 2009)...... 12 25 Public Utilities Commission v. FERC, 26 100 F.3d 1451 (9th Cir. 1996)...... 16 27 R.J. Williams Co. v. Fort Belknap Housing Authority, 719 F.2d 979 (9th Cir. 1983)...... 11 28

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1 Rosemere Neighborhood Association v. U.S. Environmental Prot. Agency, 581 F.3d 1169 (9th Cir. 2009)...... 16 2 Ruiz v. City of Santa Maria, 3 160 F.3d 543 (9th Cir. 1998)...... 15 4 Runs After v. United States, 766 F.2d 347 (8th Cir. 1985)...... 13 5 SUWA, 6 542 U.S. at 61-62...... 15 7 In re Sac & Fox Tribe of the Mississippi in Iowa/Meskwaki Casino Litigation, 340 F.3d 749 (8th Cir. 2003)...... 9, 13 8 Sac & Fox Tribe of the Mississippi in Iowa v. Bureau of Indian Affairs, 9 439 F.3d 832 (8th Cir. 2006)...... 9, 10 10 Safe Air for Everyone v. Meyer, 373 F.3d 1035 (9th Cir. 2004)...... 7 11 Santa Clara Pueblo v. Martinez, 12 436 U.S. 49, 98 S. Ct. 1670 (1978)...... 10, 11, 12 13 Savage v. Glendale Union High Sch., 343 F.3d 1036 (9th Cir. 2003)...... 7 14 Spencer v. Kemna, 15 523 U.S. 1 (1998)...... 15 16 Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998)...... 6, 7 17 Thornhill Publishing Co. v. General Telegraph & Electrics Corp., 18 594 F.2d 730 (9th Cir. 1979)...... 7 19 Timbisha Shoshone Tribe v. Kennedy, 687 F. Supp. 2d 1171 (E.D. Cal. 2009)...... 2, 11, 13 20 Timbisha Shoshone Tribe v. Salazar, 21 697 F. Supp. 2d 1181 (E.D. Cal. 2010)...... 16 22 Tucson Airport Authority v. General Dynamics Corp., 136 F.3d 641 (9th Cir. 1998)...... 11 23 United States v. Holliday, 24 70 U.S. (3 Wall.) 407, 18 L. Ed. 182 (1865)...... 9 25 United States v. Park Place Associates, Ltd., 563 F.3d 907, fn.15 (9th Cir. 2009)...... 11 26 United States v. Strong, 27 489 F.3d 1055 (9th Cir. 2007)...... 15 28

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1 Wheeler v. U.S. Department of Interior, 811 F.2d 549 (10th Cir. 1987)...... 11, 12 2 White v. Lee, 3 227 F.3d 1214 (9th Cir. 2000)...... 7 4 STATE CASES 5 Timbisha Shoshone Tribe v. BIA, Civ S-03-404-WBS-GGH, 2003 WL 25897083 (E.D. Cal. Apr. 10, 2003)...... 17 6 DOCKETED CASES 7 Timbisha Shoshone Tribe v. Salazar, D.C. District of Columbia, 8 Case No. 1:10-cv-000968...... 19 9 FEDERAL STATUTES 10

11 5 U.S.C. § 551...... 2, 3, 4, 5 12 5 U.S.C. § 706(2)...... 6 13 25 C.F.R. § 2.21(b)...... 17 14 28 U.S.C. § 1331...... 12, 13, 14 15 FEDERAL RULES 16 Fed. R. Civ. P. 12(b)(1)...... 6, 21 17 Fed. R. Civ. P. 12(b)(6)...... 7, 21 18 Fed. R. Civ. P. 19...... 5 19 MISCELLANEOUS 20 Poe v. Pac. Reg'l Dir., 43...... 16 21 Rosales v. Sacramento Area Dir., 32...... 16 22 Torres v. Acting Muskogee Area Director, Bureau of Indian Affairs, 34...... 13 23 24 25 26 27 28

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1 BENJAMIN B. WAGNER United States Attorney 2 SYLVIA A. QUAST Assistant United States Attorney 3 501 I Street, Suite 10-100 Sacramento, CA 95814 4 Telephone: (916) 554-2740 5 Attorneys for Federal Defendants1 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ) TIMBISHA SHOSHONE TRIBE, et al., ) Case No. 2:11-cv-00995-MCE-DAD 12 ) Plaintiffs, ) 13 ) FEDERAL DEFENDANTS’ v. ) MEMORANDUM OF POINTS AND 14 ) AUTHORITIES IN SUPPORT OF UNITED STATES DEPARTMENT OF ) MOTION TO DISMISS SECOND 15 THE INTERIOR, et al., ) AMENDED COMPLAINT ) 16 Defendants. ) ) Date: August 9, 2012 17 ) Time: 2:00 p.m. ) Ctrm: 7 (14th floor) 18 ) Hon. Morrison C. England, Jr. ______) 19 20 INTRODUCTION 21 Plaintiffs are individuals in the Kennedy Faction, one of two factions that have been 22 battling for control over the Timbisha Shoshone Tribe (“Tribe”) for years. As this Court 23 explained in one of the previous four federal lawsuits spawned by this dispute, the Kennedy 24 Faction and the other faction (the “Gholson Faction”), funded at various times by dueling casino 25 prospecting businesses, have held separate elections and run parallel and competing tribal 26 1 27 Federal Defendants are the Department of the Interior (“Department”), the Bureau of Indian Affairs (“BIA”), and the three Departmental officials: Donald Laverdure, Amy Dutschke, 28 and Troy Burdick.

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1 governments beginning in 2007. Timbisha Shoshone Tribe v. Kennedy, 687 F. Supp. 2d 1171, 2 1175 (E.D. Cal. 2009). Whenever a BIA official would recognize the validity of one Faction’s 3 election, the other Faction would immediately appeal to the next level in the Department, leading 4 the BIA to decide in February 2010 that it could not recognize anyone in dealing with the Tribe 5 for government-to-government purposes. To resolve this impasse, the Department’s Assistant 6 Secretary-Indian Affairs, Larry Echo Hawk (“Echo Hawk”), issued a March 1, 2011, decision 7 that recognized the recently-elected Gholson Tribal Council (“2010 Gholson Council”) for 120 8 days for the limited purpose of carrying out essential government-to-government relations and 9 holding a special election that complied with tribal law. The 2010 Gholson Council carried out 10 that election in April 2011, and after the Tribal Election Committee heard and denied the appeals 11 from that election, it certified the top five vote-getters in the election as the new Tribal Council 12 (“2011 Elected Council”). On July 29, 2011, Echo Hawk recognized the 2011 Elected Council 13 for government-to-government purposes.2 14 Plaintiffs’ Second Amended Complaint (“SAC”), which once again challenges Echo 15 Hawk’s two decisions under the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq., 16 adds the 2011 Elected Council members as defendants and purports to add the Tribe back in as a 17 plaintiff, but is otherwise largely the same as their First Amended Complaint (“FAC”), and it 18 fares no better. There continue to be multiple justiciability and jurisdictional problems with the 19 SAC as a whole and with particular causes of action, and some of the Plaintiffs’ claims for relief 20 also fail to state a claim. Accordingly, the Court should dismiss the SAC in its entirety. 21 STATEMENT OF FACTS 22 The Tribal leadership dispute giving rise to this lawsuit (the latest in a series of five 23 lawsuits to date) began in 2007 and resulted in a series of agency administrative decisions and 24 appeals, as described in detail in the Court’s May 9, 2012 Memorandum and Order dismissing 25

26 2Plaintiffs refer to the March decision as “EHD I” and the July decision as “EHD II,” and 27 had intended to attach the two decisions as Exhibits A and B to the SAC. SAC ¶ 5. They are attached as Exhibits 1 and 2, respectively, to the Declaration of James Porter in Support of 28 Defendants’ Motion to Dismiss First Amended Complaint (ECF No. 48).

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1 the Kennedy Faction’s first amended complaint. ECF No. 58. Rather than repeat this history, 2 Federal Defendants will focus on the facts most relevant to this motion. 3 The EHD I, Tribal Election, And EHD II 4 On March 1, 2011, Assistant Secretary Echo Hawk issued a decision for the Department 5 resolving the last of the administrative appeals growing out of the Tribal dispute that began in 6 2007. ECF No. 48 Exhibit 1. However, resolving the issue on appeal – whether it was proper 7 for Defendant BIA Superintendent Burdick to recognize the Tribal Council that the Kennedy 8 Faction elected to a two-year term in 2007 – did not resolve the problem of whom the 9 Department should recognize for government-to-government purposes in 2011. Going beyond 10 his decision on the administrative appeal then, Echo Hawk sought to use the least intrusive 11 means possible to comply with his duty to recognize a government if at all possible. Id. at 10. 12 Accordingly, although not bound to recognize either of the two Factions’ elections in November 13 2010, he decided to recognize the 2010 Gholson Council “for the limited time of 120 days from 14 the date of this order, and for the limited purpose of carrying out essential government-to- 15 government relations and holding a special election that complies with tribal law.” Id. He chose 16 the Gholson Faction because almost twice as many votes were cast in the Gholson election as in 17 the Kennedy Faction election, and the Kennedy election was facially flawed by excluding Tribal 18 members, namely those belonging to the group of 74 people the Kennedy Faction purported to 19 disenroll in 2008. Id. He acknowledged that Kennedy believed those individuals to be 20 disenrolled already, but noted that the Department had consistently and explicitly rejected those 21 disenrollments on procedural grounds, and that until those individuals were disenrolled in 22 compliance with Tribal law and the Indian Civil Rights Act, it would consider invalid any 23 election from which they were barred from participating. Id. 24 Within a week of EHD I, the 2010 Gholson Council began preparing for a special 25 election. ECF No. 48 Ex. 3 at 1. It selected three Tribal members to serve on the Election 26 Committee in accordance with the Tribal Constitution, and appointed another three members to 27 serve as the Enrollment Committee for purposes of compiling a list of eligible voters and 28 candidates. Id. at 1. The Enrollment Committee submitted a list of 295 individuals eligible to

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1 participate in the election, and the Election Committee mailed notices of the Special Election to 2 the eligible members, as well as information about submitting letters of intent to run as a 3 candidate. Id. at 2. There were ultimately eleven candidates, including five of the plaintiffs. Id. 4 at 2-3; SAC ¶ 110. 5 The special election was held on April 29, 2011. SAC ¶ 110; ECF No. 48 Ex. 2 at 2, Ex. 6 3 at 4, Ex. 4 at 2. In addition to the Election Committee members, an independent observer and 7 Tribal Attorney Joseph Kitto were present. ECF No. 48 Ex. 3 at 4. After the polls closed, the 8 Election Committee began counting the 234 qualified votes; the ballot counting was available for 9 viewing on the Internet. Id. The preliminary vote count showed that Defendant Bill Eddy 10 received the most votes (161), Defendant George Gholson was second (159), and Plaintiff 11 Kennedy received the fewest (60). ECF No. 48 Ex. 2 at 2. The Kennedy Faction candidates who 12 lost appealed to the Tribe’s Election Committee. ECF No. 48 Ex. 3 at 4-5, Ex. 4 at 2. After 13 holding hearings on the appeals at which each of the five Plaintiffs was given the opportunity to 14 present their views, the Tribe’s Election Committee denied the appeals, stating that they did not 15 raise any issue or offer any evidence that raised a genuine question about the validity of the 16 election. SAC ¶ 112; ECF No. 48 Ex. 3 at 5. As set forth in the Tribal Election Ordinance, the 17 decision on the appeals was final and not subject to further review. Id.; ECF No. 1, Ex. C at 16. 18 The Election Board sent a final report and certification of the election results to the Tribal 19 Council, which approved it. ECF No. 48 Ex. 3 at 5-6. 20 On May 23, the Tribe notified the BIA that it had elected a new Tribal Council consisting 21 of defendants Bill Eddy, George Gholson, Margaraet Cortez, Clyde Nichols, and Earl Frank and 22 requested that the BIA recognize that newly-elected Tribal government. ECF No. 48 Ex. 4, Ex. 3 23 at 6, and Ex. 2 at 2. The BIA reviewed the preparation for and conduct of the special election to 24 determine if the Tribe’s actions accorded with Tribal governing documents, and explained in a 25 memorandum dated June 26 that they did. ECF No. 48 Ex. 3 at 1, 6-8; Ex. 2 at 2. 26 On July 29, after reviewing the June 26 memo and the materials submitted with the 27 Tribe’s certification of the election, Echo Hawk recognized the newly elected Tribal Council in 28 EHD II. Id. at 1-3; SAC ¶ 113. He noted that the Department had issued a decision denying

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1 federal recognition of any Tribal Council almost a year and a half earlier, and then summarized 2 his previous Order recognizing the 2010 Gholson Council for a limited time and the limited 3 purpose of conducting government-to-government relations necessary for holding a special 4 election. Id. at 1-2. He then explained that the BIA had determined that the election was 5 conducted in compliance with Tribal law, and noted that it was the April 29 election – not EHD I 6 – that constituted the resolution of an internal Tribal dispute in a valid Tribal forum. Id. at 2-3. 7 He further explained that the Department needed to comply with its duty to recognize a tribal 8 representative for government-to-government purposes if possible, that working with the last 9 undisputed Tribal government was not an option here because it had dissolved into factions four 10 years ago, and that the hiatus in government-to-government relations has had deleterious effects, 11 including the Tribe’s inability to access Federal programs. Id. at 3-4. 12 Proceedings To Date In This Lawsuit 13 Plaintiffs, purporting to speak for the Tribe, filed this action attacking EHD I on April 13, 14 2011. ECF No. 1. Two weeks later, just three days before the Tribal election, they filed a 15 motion for a preliminary injunction, which the Court denied after a hearing. ECF Nos. 11, 37, 16 38. The Court questioned whether it had subject matter jurisdiction over Plaintiffs’ complaint 17 and whether the Tribe was a necessary party that had to be joined under Fed. R. Civ. P. 19. ECF 18 No. 38. Federal Defendants then moved to dismiss this action on the grounds identified in the 19 Court’s order denying the preliminary injunction. ECF No. 40. Rather than opposing the motion 20 to dismiss, Plaintiffs filed an amended complaint, attacking both EHD I and EHD II, but deleting 21 the Tribe as a named plaintiff. ECF No. 45. Federal Defendants once again filed a motion to 22 dismiss on multiple grounds. ECF No. 46. The Court granted the motion, holding that Plaintiffs 23 had failed to join the Tribe and the 2011 Elected Council as indispensable parties, but gave 24 Plaintiffs twenty days to file an amended complaint. ECF No. 58. 25 Plaintiffs’ SAC alleges essentially the same causes of action as the FAC and again 26 challenges EHD I and II pursuant to the APA, which provides that a “reviewing court shall . . . 27 hold unlawful and set aside agency action, findings, and conclusions found to be (A) arbitrary, 28 capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2).

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1 The “First Claim for Relief” alleges that the two decisions violated 25 C.F.R. Part 2 (the 2 Department’s regulations regarding administrative appeals for certain types of Indian matters), 3 the Fifth Amendment, and federal common law by recognizing the Gholson Council based on 4 information not included in the administrative record and by not giving Plaintiffs an opportunity 5 to respond to that information by addressing the alleged ineligibility of Gholson and another 6 individual to serve on the Council and “the irrelevance and unreliability” of votes cast in the 7 election one year ago. SAC ¶¶ 127-131. The Second through Fifth Claims each allege that the 8 two decisions violated “DOI Rules” and “Federal Common Law” by: not deferring to 9 interpretations of tribal law and failing to require exhaustion of tribal remedies (Second Claim -- 10 SAC ¶¶ 132-142), interfering in Tribal membership decisions (Third Claim -- SAC ¶¶ 143-154), 11 creating a hiatus in the government-to-government relationship (Fourth Claim -- SAC ¶¶ 155- 12 166), and relying on the wrong factors (Fifth Claim -- ¶¶ 167-183). The SAC adds a new Sixth 13 Claim for Relief alleging that the two decisions violated the APA because they were retaliation 14 for Plaintiff’s exercise of the their First and Fifth Amendments rights in connection with a 15 lawsuit in the District of Columbia that the Plaintiffs (with the exception of Plaintiffs Mason and 16 Frank) filed, but that was recently dismissed. SAC ¶¶ 184-191. Plaintiffs seek declarations that 17 the EHD I and II and the so-called “Rollback Rule” violated the APA, and a remand of EHD I 18 and II for further proceedings consistent with federal law. SAC at 48. 19 ARGUMENT 20 I. Standards For Deciding Motions To Dismiss 21 A. Motions to dismiss under F.R.C.P. 12(b)(1) 22 Jurisdiction is a threshold issue that the Court must address before considering the merits. 23 Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-96 (1998). Federal courts are courts of 24 limited jurisdiction and may hear a case only if authorized to do so by the Constitution or by 25 statute. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). “A federal court 26 is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears.” A- 27 Z Int’l v. Phillips, 323 F.3d 1141, 1145 (9th Cir. 2003) (citation and quotations omitted). 28 When subject matter jurisdiction is challenged under Federal Rule of [Civil] Procedure 12(b)(1),

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1 the plaintiff has the burden of proving jurisdiction in order to survive the motion. Thornhill 2 Publ’g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979). 3 A challenge to jurisdiction under Rule 12(b)(1) “can be either facial, confining the inquiry 4 to allegations in the complaint, or factual, permitting the court to look beyond the complaint.” 5 Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039-40 n.2 (9th Cir. 2003); see also White 6 v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). In a factual challenge, “the district court is not 7 restricted to the face of the pleadings, but may review any evidence, such as affidavits and 8 testimony, to resolve factual disputes concerning the existence of jurisdiction.” McCarthy v. 9 United States, 850 F.2d 558, 560 (9th Cir. 1988); see also Safe Air for Everyone v. Meyer, 373 10 F.3d 1035, 1039 (9th Cir. 2004). “Without jurisdiction the court cannot proceed at all in any 11 cause, other than announc[e] the fact and dismiss[] the case.” Steel Co., 523 U.S. at 94-95 12 (1998), quoting Ex parte McCardle, 74 U.S. 506, 514 (1868) (internal quotation marks omitted). 13 B. Motions to Dismiss under Fed. R. Civ. P. 12(b)(6). 14 The purpose of a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) is to test the legal 15 sufficiency of the complaint. See North Star Int'l v. Arizona Corp. Comm'n, 720 F.2d 578, 16 580-81 (9th Cir. 1983). "Dismissal can be based on the lack of a cognizable legal theory or the 17 absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police 18 Dep't, 901 F.2d 696, 699 (9th Cir. 1990). "To survive a motion to dismiss, a complaint must 19 contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 20 face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 21 544, 570 (2007)). A claim is plausible "when the plaintiff pleads factual content that allows the 22 court to draw the reasonable inference that the defendant is liable for the misconduct alleged." 23 Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory 24 statements, do not suffice." Id. Also, a court is “not . . . required to accept as true allegations 25 that contradict exhibits attached to the Complaint, or matters properly subject to judicial notice, 26 or allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable 27 inferences.” Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). 28

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1 II. Plaintiffs’ Challenge To The Two Echo Hawk Decisions Is Not Justiciable. 2 Although the SAC makes a host of assertions about the Tribal factional dispute, this case 3 is still fundamentally an APA action in which Plaintiffs seek review of the EHD I, recognizing 4 the 2010 Gholson Council on an interim basis, and the EHD II, recognizing the 2011 Elected 5 Council. See SAC ¶¶ 2, 4-5. All six of the SAC’s Claims are APA claims, and the only two 6 agency actions Plaintiffs identify as final, which is a requirement for APA review, are EHD I and 7 II. SAC ¶ 5; Norton v. Southern Utah Wilderness Alliance (“SUWA”), 542 U.S. 55, 61-62 8 (2004) (in APA action, “the “agency action” complained of must be “final agency action”). As 9 relief, they request that the Court declare the two decisions in violation of law and remand them 10 for further proceedings in accordance with law. SAC at 48. Thus, once again in the guise of a 11 suit against the government, Plaintiffs are seeking to have this Court intervene in an internal 12 tribal leadership dispute between competing tribal Factions and ignore the results of a Tribal 13 election in which Plaintiffs were resoundingly defeated. Once again, a key premise of their 14 argument is that people disenrolled under Tribal law were allowed to run as candidates and to 15 vote. SAC ¶¶ 2, 104, 109, 119, 131, 143-154. Their suit continues to be nonjusticiable. 16 Very early on, the Supreme Court held that “[q]uestions, in their nature political, or which 17 are, by the constitution and laws, submitted to the executive, can never be made in this court.” 18 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170, 2 L. Ed. 60 (1803). For example, the Supreme 19 Court deferred to the Federal Government’s de facto recognition of one of two rival government 20 factions in Mexico, holding that questions of which of two competing governments should be 21 deemed to be the legitimate government of a country “is a political question, the determination of 22 which by the legislative and executive departments of any government conclusively binds the 23 judges, as well as all other officers, citizens and subjects of that government.” Oetjen v. Cent. 24 Leather Co., 246 U.S. 297, 302 (1918). The Supreme Court has also stated that if the Secretary 25 of the Interior and the Commissioner of Indian Affairs had decided to recognize a group of 26 Indians as a tribe, the Court must do the same: “In reference to all matters of this kind, it is the 27 rule of this court to follow the action of the executive and other political departments of the 28 government, whose more special duty it is to determine such affairs.” United States v. Holliday,

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1 70 U.S. (3 Wall.) 407, 419, 18 L. Ed. 182 (1865). Accordingly, courts have recognized that “‘the 2 action of the federal government in recognizing or failing to recognize a tribe has traditionally 3 been held to be a political one not subject to judicial review.’” Kahawaiolaa v. Norton, 386 F.3d 4 1271, 1276 (9th Cir. 2004), quoting Miami Nation v. U.S. Dep't of Interior, 255 F.3d 342, 347 5 (7th Cir. 2001) (internal quotes omitted). 6 Although the Department has brought the process of whether to initially recognize a 7 group of Indians as a tribe within the scope of review of the APA by “‘canaliz[ing] the discretion 8 of its subordinate officials by means of regulations that require them to base recognition of 9 Indian tribes on the kinds of determination, legal or factual, that courts routinely make,’” 10 Kahawaiolaa, 386 F.3d at 1276, quoting Miami Nation, 255 F.3d at 348, this has not happened 11 with regard to deciding which of two Tribal factions to recognize for government-to-government 12 purposes. There are no statutes or regulations guiding the legal or factual determinations to be 13 made, and Plaintiffs do not attempt to cite any. Moreover, Plaintiffs have acknowledged that 14 “DOI has some freedom to recognize a government on an interim basis while the Tribe resolves 15 its disputes intramurally.” Plaintiffs’ Memorandum of Points and Authorities in Support of 16 Plaintiffs’ Motion for a Preliminary Injunction (ECF No. 20) at 8. Courts have repeatedly 17 “characterized election disputes between competing tribal councils as nonjusticiable, intratribal 18 matters” and have rejected APA challenges to BIA decisions to recognize one of two competing 19 tribal councils. Sac & Fox Tribe of the Mississippi in Iowa v. Bureau of Indian Affairs, 439 F.3d 20 832, 835 (8th Cir. 2006) (“Sac & Fox Tribe”), citing In re Sac & Fox Tribe of the Mississippi in 21 Iowa/Meskwaki Casino Litig., 340 F.3d 749, 763 (8th Cir. 2003), and Goodface v. Grassrope, 22 708 F.2d 335, 339 (8th Cir. 1983). See also Potts v. Bruce, 533 F.2d 527, 530 (10th Cir. 1976) 23 (rejecting as nonjusticiable Tribal members’ Fifth Amendment challenge to BIA action in 24 resolving tribal governance stalemate). 25 Sac & Fox Tribe is directly on point here. In that case, BIA resolved a leadership dispute 26 between rival tribal councils that were holding competing elections by calling for a new election 27 board for the purpose of holding a special election. Sac & Fox Tribe, 439 F.2d at 834. Three 28 days after the special election, the BIA recognized the elected council. Id. The rival faction’s

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1 election board administratively appealed BIA’s decision to create a new election board and 2 sought to stay further BIA action, but the Department’s Principal Deputy Assistant Secretary of 3 Indian Affairs affirmed the BIA’s decision without receiving any briefing or hearing argument 4 from the rival election board. Id. The rival election board then brought an APA action 5 challenging the BIA’s decision to recognize the newly elected council, and seeking a declaration 6 that BIA had unlawfully interfered with tribal elections and an order requiring the BIA to 7 recognize the rival tribal council. Id. The Eighth Circuit upheld the district court’s conclusion 8 that it lacked jurisdiction over the case, specifically holding that “the district court lacked 9 jurisdiction to determine which tribal faction rightfully controlled the Sac & Fox Tribe of the 10 Mississippi in Iowa,” and noting several other cases in which such matters were held to be 11 nonjusticiable. Id. at 835. As this Court has already explained, the reasoning of Sac & Fox Tribe 12 is applicable here (ECF No. 38 at 12-13), and the Court should therefore dismiss this case for 13 lack of subject matter jurisdiction. See Corrie v. Caterpillar, Inc., 503 F.3d 974, 979-80 (9th Cir. 14 2007) (“the presence of a political question deprives the court of subject matter jurisdiction”). 15 Plaintiffs’ claim that, in recognizing the 2010 Gholson Council on an interim basis and 16 now the 2011 Elected Council, the Federal Defendants have unlawfully turned the Tribe over to a 17 tribal council of disenrolled members elected by disenrolled members (SAC ¶¶ 1, 72-74, 143- 18 154) must also be rejected because it is subject to what the Ninth Circuit has described as the 19 “jurisdictional whammy” of the “lack of federal court jurisdiction to intervene in tribal 20 membership disputes.” Lewis v. Norton, 424 F.3d 959, 960 (9th Cir. 2005), citing Santa Clara 21 Pueblo v. Martinez, 436 U.S. 49, 98 S. Ct. 1670 (1978). See also Apodaca v. Silvas, 19 F.3d 22 1015, 1016 (5th Cir. 1994) (per curiam) (“[P]roviding a federal forum for the resolution of 23 [membership] disputes would illegitimately interfere with tribal autonomy and self- 24 government.”); Wheeler v. U.S. Dep’t of Interior, 811 F.2d 549, 551 (10th Cir. 1987); R.J. 25 Williams Co. v. Fort Belknap Hous. Auth., 719 F.2d 979, 983 (9th Cir. 1983). As the Supreme 26 Court has explained, “[a] tribe’s right to define its own membership for tribal purposes has long 27 been recognized as central to its existence as an independent political community. Given the 28 often vast gulf between tribal traditions and those with which federal courts are more intimately

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1 familiar, the judiciary should not rush to create causes of action that would intrude on these 2 delicate matters.” Santa Clara Pueblo, 436 U.S. at 72, n.32 (internal citations omitted). 3 Accordingly, Plaintiffs’ effort to entangle this Court in their membership dispute with the 4 Gholson Faction is one more reason to hold that their challenge is not justiciable. See also 5 Timbisha Shoshone Tribe v. Kennedy, 687 F. Supp. 2d 1171, 1185 (E.D. Cal. 2009) (in dispute 6 between rival factions of this Tribe and involving many of the same plaintiffs, this Court held 7 that it could not “determine the issue of standing without resolution of the legitimacy of 8 disenrollment” and that neither faction pointed to authority to allow this Court to resolve the 9 issue of disenrollment). 10 III. The Court Lacks Jurisdiction Over The Second Claim For Relief, Which Is Not 11 Premised On Questions Of Federal Law. 12 The Second Claim for Relief in the SAC alleges that EHD I and EHD II violate the APA 13 because the Department arbitrarily and capriciously failed to defer to interpretations of tribal law 14 by tribal-law applying bodies and because DOI must not entertain administrative appeals of its 15 own recognition decisions if a party has not exhausted tribal remedies. SAC ¶ 133. It is well- 16 established that the APA alone does not provide a basis for subject matter jurisdiction in the 17 federal courts. Califano v. Sanders, 430 U.S. 99, 107 (1977) (“[T]he APA does not afford an 18 implied grant of subject-matter jurisdiction permitting federal judicial review of agency action.”); 19 United States v. Park Place Assocs., Ltd., 563 F.3d 907, 929 fn.15 (9th Cir. 2009) (Section 702 20 of the APA “does not confer federal jurisdiction”); Tucson Airport Auth. v. Gen. Dynamics 21 Corp., 136 F.3d 641, 645 (9th Cir. 1998) (“It is beyond question . . . that the APA does not 22 provide an independent basis for subject matter jurisdiction in the district courts.”). 23 Plaintiffs also allege that there is jurisdiction under 28 U.S.C. § 1331, but this requires the 24 claim to be one “arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. 25 § 1331. “A case ‘arises under’ federal law within the meaning of § 1331 ... if ‘a well-pleaded 26 complaint establishes either that federal law creates the cause of action or that the plaintiff's right 27 to relief necessarily depends on resolution of a substantial question of federal law.’” Proctor v. 28 Vishay Intertechnology, Inc., 584 F.3d 1208, 1219 (9th Cir. 2009), quoting Empire Healthchoice

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1 Assurance, Inc. v. McVeigh, 547 U.S. 677, 689-90, 126 S. Ct. 2121 (2006) (quoting Franchise 2 Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 27-28, 103 S. Ct. 3 2841 (1983) (brackets omitted)). The only basis for federal question jurisdiction the Second 4 Claim alleges in any detail is “federal common law” in the form of two decisions – Santa Clara 5 Pueblo v. Martinez, 436 U.S. 49 (1978) and Wheeler v. Dep’t of the Interior, 811 F.2d 549 (10th 6 Cir. 1987) – but neither of these decisions provides such a basis. Neither decision stands for the 7 proposition that the Department “is bound by the decisions of tribal law-applying bodies, 8 regardless of whether DOI agrees with them” and must defer to them without fail. SAC ¶¶ 134, 9 133. Nor does either decision stand for the proposition that “parties may not appeal DOI 10 recognition decisions if they have not exhausted their tribal remedies.” SAC ¶¶ 141, 133. 11 Accordingly, federal common law does not provide § 1331 jurisdiction over the Second Claim. 12 The Second Claim also relies on Santa Clara Pueblo and Wheeler to support the assertion 13 that the Kennedy Faction’s Tribal Election Board, Tribal Enrollment Committee, and General 14 Council were “tribal law-applying bodies,” but again neither of these cases support this claim. 15 Instead, they both look to tribal law to determine whether there is a forum to interpret tribal law, 16 and in Santa Clara Pueblo, the tribal constitution vested judicial authority in the tribal council. 17 Santa Clara Pueblo, 436 U.S. at 66 n.22. Here, by contrast, the Tribe’s constitution vests the 18 judicial power of the Tribe in the Tribal Judiciary, and the Tribal Council and its boards or 19 committees cannot exercise any powers belonging to the Tribal Judiciary. Complaint Exhibit A 20 at 3, 25 (ECF No. 1). It thus does not appear that any of the Kennedy Faction entities are proper 21 law-applying bodies under either federal or tribal law, and in any event, answering the question 22 of whether they should be recognized as such requires delving deeply into Tribal law, which is 23 beyond the jurisdiction of this Court. See In re Sac & Fox Tribe of the Miss. in Iowa/Meskwaki 24 Casino Litig., 340 F.3d 749, 763 (8th Cir. 2003) (“Jurisdiction to resolve internal tribal disputes, 25 interpret tribal constitutions and laws, and issue tribal membership determinations lies with 26 Indian tribes and not in the district courts”); Runs After v. United States, 766 F.2d 347, 352 (8th 27 Cir. 1985) (holding that the district court lacked jurisdiction to resolve “disputes involving 28 questions of interpretation of the tribal constitution and tribal law”) (citations omitted); Goodface

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1 v. Grassrope, 708 F.2d 335, 339 (8th Cir. 1983) (“[T]he district court overstepped the boundaries 2 of its jurisdiction in interpreting the tribal constitution and bylaws and addressing the merits of 3 the election dispute.”). Accordingly, Plaintiffs’ right to relief under this Claim depends on 4 resolution of questions of Tribal – not federal – law and does not fall within the ambit of 28 5 U.S.C. § 1331. The Court therefore does not have jurisdiction over it and it must be dismissed. 6 IV. The Court Lacks Jurisdiction Over The Third Claim For Multiple Reasons. 7 The Third Claim also purports to have federal common law as its jurisdictional basis, 8 asserting that “[f]ederal common law and DOI decisional law prohibit DOI from making any 9 tribal membership decisions without explicit tribal or congressional authority,” but again the only 10 case it cites, Timbisha Shoshone Tribe v. Kennedy, 687 F.Supp.2d 1171 (E.D. Cal. 2009), does 11 not support such a broad assertion. SAC ¶ 144. In fact, it is well-established that “in discharging 12 its duties under the government-to-government relationship, BIA has the authority and the 13 responsibility to decline to recognize the results of a tribal action when it finds that a violation of 14 the Indian Civil Rights Act (ICRA), 25 U.S.C. § 1302, has occurred.” Torres v. Acting 15 Muskogee Area Director, Bureau of Indian Affairs, 34 IBIA 173, 181 (November 22, 1999), and 16 cases cited therein. In any event, it is clear from Plaintiffs’ own admissions that it was not the 17 Federal Defendants that added 74 people to the Tribe’s membership roll, but the Tribe itself that 18 did this at some point in the mid-1990s, and that it was the Kennedy Faction’s Enrollment 19 Committee that purported to disenroll them (including Gholson and other members of his 20 Faction) in 2008 in advance of the Tribal elections. Declaration of Grace Goad (ECF No. 14) ¶¶ 21 18, 24-26; ECF No. 20 at 4; Declaration of Angie Boland (ECF No.12) ¶ 6. The Department 22 only noted that the Kennedy Faction did not follow the Tribe’s own procedures for disenrolling 23 those individuals; it did not address the substance of whether the Tribe should have added them 24 in the first place. The jurisdictional defect in the SAC is that deciding whether the Department’s 25 decision was correct will require the Court to delve into (1) Tribal law to determine whether the 26 disenrollments were proper, and (2) Tribal membership questions, which it is barred from doing 27 by controlling Ninth Circuit law. See supra at 10-11. 28

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1 V. The Court Lacks Jurisdiction Over The Fifth Claim For Relief, Which Does Not Cite Any Specific Underlying Law. 2 The Fifth Claim for Relief in the Complaint also alleges an APA “arbitrary and 3 capricious” claim, faulting the EHD I and EHD II for “relying on irrelevant factors and ignoring 4 relevant factors,” but nowhere in this Claim’s miscellany of grievances does it identify any 5 specific provision of federal law or even cases the EHD I or II supposedly violated. SAC ¶¶ 167- 6 183.3 Thus, in addition to failing to provide a basis for federal subject matter jurisdiction under 7 28 U.S.C. § 1331, it fails on another ground as well. Section 706(2)(A) of the APA “merely 8 provides ‘[t]he standards to be applied on review . . . . But before any review at all may be had, a 9 party must first clear the hurdle of § 701(a),” which requires that there be “law to apply.” Or. 10 Natural Res. Council v. Thomas, 92 F.3d 792, 797 (9th Cir. 1996), quoting Heckler v. Chaney, 11 470 U.S. 821, 828 (1985). APA “arbitrary and capricious” claims that “stand free of any other 12 law” are barred because there is no law to apply. Or. Natural Res. Council, 92 F.3d at 798-99. 13 Much like the plaintiffs in Or. Natural Resources Council, Plaintiffs here fail to allege that any 14 statute, apart from the APA, required the Defendants to consider the factors they allege that were 15 not considered. Id. at 795. This is insufficient to establish jurisdiction over this claim, and it 16 must therefore be dismissed. 17 VI. Plaintiffs’ Fourth Claim For Relief Should Be Dismissed. 18 A. The Echo Hawk Decisions Ended The Hiatus In Federal Recognition Of A 19 Tribal Government. 20 The Fourth Claim For Relief asserts that the Federal Defendants violated the APA by 21 “manufacturing a hiatus in federal recognition of a tribal government.” SAC ¶¶ 155-158. In this 22 regard, it appears to challenge a 2010 scheduling order in the administrative appeal and a 23 decision by Defendant Burdick, but does not allege that either of these is a final agency decision 24 nor are they, which is necessary for an APA claim. SUWA, 542 U.S. at 61-62. Indeed, the SAC 25 26 3The SAC mentions the Timbisha Shoshone Homeland Act of 2000, asserting that the Department should have considered that the Gholson Faction operates out of Bishop, California, 27 rather than Death Valley, but it identifies nothing in the Act that mandated that the Tribal 28 government be located in Death Valley or that the Department could only recognize those located in Death Valley for government-to-government purposes. SAC ¶¶ 44, 172-173. 14 MEMO IN SUPPORT OF MOTION TO DISMISS SECOND AMENDED COMPLAINT Case 2:11-cv-00995-MCE-DAD Document 61-1 Filed 06/12/12 Page 21 of 26

1 specifically alleges that the Burdick decision is still on appeal. SAC ¶¶ 94-95. To the contrary, 2 the only final actions alleged are EHD I or II (SAC ¶¶ 2,5), but it is clear on their face that those 3 decisions ended – not “manufactured” – a hiatus in federal recognition. ECF No. 48 Exhibits 1 4 and 2; SAC ¶ 113 (acknowledging that EHD II recognizes the 2011 Elected Council for 5 government-to government purposes). Accordingly, this Claim fails to state a cause of action. 6 It would be moot in any event. “Article III of the Constitution limits federal courts to the 7 adjudication of actual, ongoing controversies between litigants.” Deakins v. Monaghan, 484 8 U.S. 193, 199 (1988); United States v. Strong, 489 F.3d 1055, 1059 (9th Cir. 2007) (mootness is 9 a threshold jurisdictional issue). A case becomes moot when the issues presented are no longer 10 "live" or the parties lack a legally cognizable interest in the outcome. City of Erie v. Pap's A.M., 11 529 U.S. 277, 287 (2000). “This means that, throughout the litigation, the plaintiff ‘must have 12 suffered, or be threatened with, an actual injury traceable to the defendant and likely to be 13 redressed by a favorable judicial decision.’” Spencer v. Kemna, 523 U.S. 1, 7 (1998) (quoting 14 Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990)). Thus, the basic question in determining 15 mootness is “‘whether there exists a present controversy as to which effective relief can be 16 granted.’” Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th Cir. 2007) 17 (citation omitted); Ruiz v. City of Santa Maria, 160 F.3d 543, 549 (9th Cir. 1998). In general, 18 when an administrative agency has performed the action sought by a plaintiff in litigation, a 19 federal court “lacks the ability to grant effective relief,” and the claim is moot. Rosemere 20 Neighborhood Ass’n v. U.S. Envt’l Prot. Agency, 581 F.3d 1169, 1172-73 (9th Cir. 2009); Pub. 21 Utils. Comm'n v. FERC, 100 F.3d 1451, 1458 (9th Cir. 1996). Here, the Federal Defendants 22 have recognized the 2011 Elected Council, so there is no longer a hiatus in federal recognition, 23 and this Claim is moot. 24 B. Plaintiffs’ Challenge To The So-Called “Rollback Rule” Should Be 25 Dismissed.

26 The second part of Plaintiffs’ Fourth Claim alleges that the Department adopted 27 something they call the “Rollback Rule,” which they assert is discussed in a related case, 28 Timbisha Shoshone Tribe v. Salazar, 697 F. Supp.2d 1181, 1185 (E.D. Cal. 2010). SAC ¶¶ 159-

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1 166. Although that case does not explicitly refer to a “Rollback Rule,” Plaintiffs appear to be 2 referring to Interior Board of Indian Appeals (“IBIA”) decisions which have held that when BIA 3 is faced with a tribal leadership dispute, it can continue to recognize the last undisputed tribal 4 officials on an interim basis for government-to-government purposes. See, e.g., Poe v. Pac. 5 Reg’l Dir., 43 IBIA 105, 112 (June 9, 2006) ; Rosales v. Sacramento Area Dir., 32 IBIA 158, 167 6 (April 22, 1998). (The IBIA is the entity to which parties can administratively appeal BIA 7 decisions. ) Indeed, this principle appears to have had its genesis in Rosales. As the IBIA has 8 made clear, however, this is not invariably required. Poe, 43 IBIA at 112, n.10. The Kennedy 9 Faction now elevates this principle of decisional law to the status of a “rule,” christening it the 10 “Rollback Rule” and claiming that it is subject to notice and comment rulemaking under the 11 APA. SAC ¶¶ 159-166. This claim is legally meritless and should be dismissed. 12 First, federal agencies do not have to go through notice and comment rulemaking 13 procedures before they follow principles of decisional law. Such a requirement would be absurd 14 – agencies are bound by decisional law and it would be a sham to go through the rulemaking 15 process as a result. Second, the IBIA has stated very clearly that BIA is not always bound to 16 continue looking to the last recognized officials, thus other options are not foreclosed. Indeed, 17 the Department did not follow that principle here. As such, this so-called “Rule” is at most an 18 interpretive rule, and there is therefore no requirement to go through rulemaking. Malone v. BIA, 19 38 F.3d 433, 438 (9th Cir. 1994). Third, this principle has been around for at least thirteen years 20 and the Kennedy Faction has known about it since at least April 2003. See Timbisha Shoshone 21 Tribe v. BIA, Civ S-03-404-WBS-GGH, 2003 WL 25897083 at *2 (E.D. Cal. Apr. 10, 2003) 22 (discussing the principle in question). The statute of limitations for an APA claim asserting that 23 it should be subject to notice-and-comment rulemaking passed years ago. Hells Canyon Preserv. 24 Council v. U.S. Forest Serv., 593 F.3d 923, 930 (9th Cir. 2010) (APA claims subject to six-year 25 statute of limitations). Fourth, neither of the actions challenged here rely on this “Rule.” As a 26 result, the question of its validity is irrelevant to this lawsuit.4 27 4 28 Plaintiffs cite Goodface for the proposition that the Department should have recognized the Kennedy Faction as the “logical choice” to oversee the special election (SAC ¶ 165), but the 16 MEMO IN SUPPORT OF MOTION TO DISMISS SECOND AMENDED COMPLAINT Case 2:11-cv-00995-MCE-DAD Document 61-1 Filed 06/12/12 Page 23 of 26

1 VII. Plaintiffs’ First Claim Fails To State A Claim For Violations of Departmental 2 Regulations Or The Due Process Clause. 3 Plaintiffs’ First Claim for Relief asserts that the EHD I and II violated the Due Process 4 Clause and Departmental appeal regulations by being based “solely on information that was not 5 in the DOI appellate record” and by not giving the parties to the appeal notice and an opportunity 6 to comment on the information in question. SAC ¶ 129, citing 25 C.F.R. § 2.21(b). Plaintiffs 7 fail to state a claim under the Due Process Clause because they fail to allege and identify a liberty 8 or property interest at issue that is constitutionally protected under the Fifth Amendment. 9 Johnson v. Rancho Santiago Comm. Coll. Dist., 623 F.3d 1011, 1029 (9th Cir. 2010) (“To 10 succeed on a substantive or procedural due process claim, the plaintiffs must first establish that 11 they were deprived of an interest protected by the Due Process Clause”); Kwai Fun Wong v. 12 United States, 373 F.3d 952, 967-68 (9th Cir. 2004); Pan-Am. World Airways v. U.S. Dist. Ct. 13 For Cent. Dist. Of CA, 523 F.2d 1073, 1077 (9th Cir. 1975), citing Board of Regents v. Roth, 408 14 U.S. 564, 569 (1972). Even if they had identified such an interest, there was no violation of due 15 process or the Department’s administrative appeal regulations because neither decision was 16 subject to those regulations – EHD II was self-evidently not part of any administrative appeals 17 and a careful reading of EHD I also reveals that the challenged portion of it, the decision to 18 recognized the 2010 Gholson Council for limited purposes, is not part of an administrative 19 appeal. 20 EHD I was actually not one, but two decisions. The first decision that Echo Hawk faced 21 was to render a determination in the administrative appeal, i.e., whether to affirm or reverse the 22 Regional Director’s decision to reject the validity of the actions taken at the January 20, 2008 23 General Council special meeting and the Superintendent’s resulting decision to recognize the 24 2007 Kennedy Council for government-to-government purposes. For the reasons explained 25 supra at 3 and in considerably more detail in EHD I itself, he decided to affirm the Regional 26 Director. This resolution of the administrative appeal may appropriately be judged by its 27 28 Eighth Circuit in that case rebuked the District Court as having “overstepped the boundaries of its jurisdiction” by addressing the merits of the intratribal dispute. 708 F.2d at 339. 17 MEMO IN SUPPORT OF MOTION TO DISMISS SECOND AMENDED COMPLAINT Case 2:11-cv-00995-MCE-DAD Document 61-1 Filed 06/12/12 Page 24 of 26

1 compliance with the Department’s appeal regulations, but Plaintiffs do not argue that this 2 resolution relied on information outside of the administrative record or otherwise violated the 3 Department’s appeal regulations or, for that matter, the Due Process clause. 4 Having reached a decision on the appeal that left the Tribe without a federally-recognized 5 government, Echo Hawk faced a second decision: whom should the Department recognize for 6 government-to-government purposes? As he explained, “the Department has a duty to recognize 7 a government if at all possible. Since my decision on the appeal has not provided a solution, I 8 must seek another way to reestablish a government-to-government relationship between the 9 United States [and] the Tribe.” ECF No. 48 Ex. 1 at 10. Indeed, as he pointed out, even if he 10 had decided the appeal in the Kennedy Faction’s favor, it would not have satisfied this duty, as 11 the 2007 Kennedy Council’s two-year terms had all expired before briefing even began on the 12 appeal to Echo Hawk. ECF No. 48 Ex. 1 at 9. In other words, Echo Hawk did not reach this 13 second decision as part of his obligation to decide the administrative appeal, which did not 14 present the question of whom to recognize now in any event, but in response to his duty to 15 recognize a government if at all possible. Since this second decision was not the resolution of an 16 administrative appeal, Echo Hawk was not bound by the Departmental appeal regulations. 17 Plaintiffs cite to no other authority for the proposition that Echo Hawk had a duty to consult with 18 them prior to deciding to recognize the 2010 Gholson Council for a limited purpose and time, or 19 a duty to reveal to them the documentary support for that decision before it was published. 20 Accordingly, this Claim must be dismissed. 21 VIII. Plaintiffs’ Sixth Claim for Relief Fails to State A Claim. 22 Plaintiffs’ Sixth Claim asserts that the two Echo Hawk decisions violated the APA by 23 retaliating against some of them for filing a lawsuit against the government in the District of 24 Columbia, Timbisha Shoshone Tribe v. Salazar, D.C. District of Columbia, Case No. 1:10-cv- 25 000968, on appeal D.C. Cir. Case No. 11-5049, in violation of their First Amendment speech 26 and petition rights and Fifth Amendment due process rights. SAC ¶¶ 123, 184-191. However, an 27 infringement of the right to free speech or to petition cannot provide the basis for a violation of 28 due process. “[W]here a particular amendment ‘provides an explicit textual source of

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1 constitutional protection’ against a particular sort of government behavior, ‘that Amendment, not 2 the more generalized notion of “substantive due process,” must be the guide for analyzing these 3 claims.’ ” Albright v. Oliver, 510 U.S. 266, 273, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) 4 (Rehnquist, C.J., for plurality) (quoting Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 5 104 L.Ed.2d 443 (1989)). Since the First Amendment provides explicit protection for the right to 6 free speech and petition, Plaintiffs may not additionally base a due process claim on a violation 7 of those rights. 8 Plaintiffs’ First Amendment claim also fails. The SAC is devoid of any allegations that 9 the Echo Hawk decisions had any chilling effect on the exercise of their First Amendment rights. 10 Even if the SAC could be construed to include such an allegation, the allegations in the SAC 11 itself and the court docket in the D.C. case, of which the Court may take judicial notice, 12 contradict the allegations in the Sixth Claim. Plaintiffs assert that “[d]uring the period when DOI 13 recognized and worked with the Kennedy Faction, the Timbisha Tribe, led by the Kennedy 14 Faction sued the DOI” in the District of Columbia, and that “[o]nce DOI installed the Gholson 15 Faction as the officers of the Tribe, DOI moved to dismiss the action in the D.C. District on the 16 ground that the plaintiffs no longer represented the Tribe.” SAC ¶ 187. However, elsewhere in 17 the SAC, Plaintiffs admit that the Department stopped recognizing the Kennedy Faction almost 18 four months before the Kennedy Factions filed the D.C. district court litigation. SAC ¶¶ 54 (BIA 19 “terminated government-to-government relations with the Tribe” on February 24, 2010) , 94 20 (same), 104 (“Echo Hawk found that there had been a hiatus in government-to-government 21 relations since February 2010); ECF No. 48 Ex. 1 at 2 (same); Timbisha Shoshone Tribe v. 22 Salazar, D.C. D.C. Case No. 1:10-cv-000968 Docket # 1 (complaint filed June 10, 2010). 23 Moreover, the Department argued that plaintiffs in the D.C. case lacked standing to represent the 24 Tribe on January 12, 2011, almost two months before Echo Hawk recognized the 2010 Gholson 25 Council, and won a complete dismissal of the case in the District Court on the same day that 26 Echo Hawk issued EHD I. Id. at Docket # 24 (pages 8-10 of the brief) and Docket #33 (March 1, 27 2011, Memorandum Opinion granting motion to dismiss). The Court need not – and should not 28 – accept as true factual allegations that are contradicted by other allegations in the complaint and

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1 in the judicial record of the D.C. case, and Plaintiffs’ inference that EHD I and II were for the 2 purpose of getting out of that lawsuit is unreasonable. Accordingly, the Court should dismiss 3 this cause of action.5 4 CONCLUSION 5 For the foregoing reasons, the Court should dismiss this case in its entirety. 6 7 DATED: June 12, 2012 BENJAMIN B. WAGNER United States Attorney 8 By: /s/ Sylvia Quast 9 SYLVIA QUAST Assistant U.S. Attorney 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5Plaintiffs also allege that they “have spoken out for decades against federal actions affecting their lands” and “brought or joined in multiple lawsuits against federal agencies” and 26 “have caused difficulties for the federal government in international forums and the press,” but 27 also acknowledge that the Department had recognized and worked with them and their direct predecessors during those same times. SAC ¶¶ 188, 185. They further acknowledge that as late 28 as December 2010, the United States decided to announce its support for a Declaration on the Rights of Indigenous People, which Plaintiff Kennedy alleges he called on the government to ratify. SAC ¶ 126. These allegations do not lend support to Plaintiffs’ First Amendment claim. 20 MEMO IN SUPPORT OF MOTION TO DISMISS SECOND AMENDED COMPLAINT