Chemehuevi Indian Tribe v. John McMahon , 934 F.3d 1076 ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHEMEHUEVI INDIAN TRIBE, on its No. 17-56791
own behalf and on behalf of its
members parens patriae; CHELSEA D.C. No.
LYNN BUNIM; TOMMIE ROBERT 5:15-cv-01538-
OCHOA; JASMINE SANSOUCIE; NAOMI DMG-FFM
LOPEZ,
Plaintiffs-Appellants,
OPINION
v.
JOHN MCMAHON, in his official
capacity as Sheriff of San
Bernardino County; RONALD
SINDELAR, in his official capacity as
deputy sheriff for San Bernardino
County,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Argued and Submitted May 13, 2019
Pasadena, California
Filed August 19, 2019
2 CHEMEHUEVI INDIAN TRIBE V. MCMAHON
Before: Kim McLane Wardlaw and Andrew D. Hurwitz,
Circuit Judges, and Edward R. Korman, * District Judge.
Opinion by Judge Hurwitz
SUMMARY **
Civil Rights/Indian Country
The panel affirmed in part and vacated in part the district
court’s dismissal of a complaint and remanded in an action
brought pursuant to 42 U.S.C. § 1983 by the Chemehuevi
Indian Tribe and four of its enrolled members alleging
violations of various federal statutory and constitutional
rights in connection with citations by San Bernardino
County Sheriff’s Deputies of four Tribe members for
violating California regulatory traffic laws.
The panel first analyzed the history and establishment of
the Chemehuevi Reservation and concluded that the area
where the Tribe members were cited was within the
boundaries of the Reservation and hence was “Indian
country” under 18 U.S.C. § 1151(a). Accordingly, the panel
held that San Bernardino County did not have jurisdiction to
enforce California regulatory traffic laws within that area.
*
The Honorable Edward R. Korman, United States District Judge
for the Eastern District of New York, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
CHEMEHUEVI INDIAN TRIBE V. MCMAHON 3
The panel held that the individual plaintiffs, but not the
Tribe, could challenge the citations under § 1983. The panel
held that because § 1983 was designed to secure private
rights against government encroachment, tribal members
could use it to vindicate their individual rights, but not the
tribe’s communal rights. The panel therefore vacated the
district court’s judgment dismissing the complaint as to the
individuals, but affirmed the judgment as to the Tribe.
COUNSEL
Lester John Marston (argued), Rapport and Marston, Ukiah,
California, for Plaintiffs-Appellants.
Shaun M. Murphy (argued) and Katelyn K. Empey, Slovak
Baron Empey Murphy & Pinkey LLP, Palm Springs,
California; Michelle Blakemore and Miles Kowalski, San
Bernardino County Counsel, San Bernardino, California; for
Defendants-Appellees.
OPINION
HURWITZ, Circuit Judge:
In 2015, San Bernardino County Sheriff’s Deputies cited
four enrolled members of the Chemehuevi Indian Tribe for
violating California regulatory traffic laws. Two of the
Tribe’s members were cited on Section 36 of Township
5 North, Range 24 East (“Section 36”), a one square mile
plot the Tribe claims is part of its Reservation; two were
cited elsewhere on the Reservation.
4 CHEMEHUEVI INDIAN TRIBE V. MCMAHON
It is undisputed that the Sheriff cannot enforce regulatory
traffic laws in “Indian country.” See 18 U.S.C. § 1162;
28 U.S.C. § 1360. “Indian country” includes, but is not
limited to, land within the boundaries of a reservation.
18 U.S.C. § 1151. The issues for decision today are
(1) whether the individual Tribe members and the Tribe can
challenge the citations through a 42 U.S.C. § 1983 action;
and, if so, (2) whether Section 36 is Indian country. We hold
that the individual plaintiffs, but not the Tribe, can challenge
the citations under § 1983. And, we conclude that all the
citations occurred within Indian country. We therefore
vacate the district court’s judgment dismissing the complaint
as to the individuals but affirm the judgment as to the Tribe.
I. Background.
A. Facts.
Chelsea Lynn Bunim, Jasmine Sansoucie, Tommie
Robert Ochoa, and Naomi Lopez are enrolled members of
the Chemehuevi Tribe. Each was stopped and cited by a San
Bernardino County Sheriff’s Deputy for violating a
California regulatory traffic law. Deputy Sheriff Ronald
Sindelar stopped and cited Bunim on Section 36 for driving
without a valid registration. Sindelar impounded Bunim’s
car, leaving her alone on the roadside. Deputy Sindelar also
stopped Sansoucie on Section 36, citing her for driving with
a suspended license.
Deputy Sindelar cited Ochoa for driving without a valid
registration and failing to provide evidence of financial
responsibility. Sindelar had Ochoa’s car towed, leaving him
alone on the roadside. Deputy Sheriff J. Wagner cited Lopez
for driving without a valid registration. Both of these
citations were issued at locations that the parties agree are
inside the boundaries of the Chemehuevi Reservation.
CHEMEHUEVI INDIAN TRIBE V. MCMAHON 5
Bunim, Sansoucie, Ochoa, Lopez, and the Tribe sued the
Sheriff and the Deputies under 42 U.S.C. § 1983, alleging
violations of various federal statutory and constitutional
rights. The complaint sought monetary damages, a
declaratory judgment, and injunctive relief. The defendants
argued that none of the plaintiffs’ claims was cognizable
under § 1983. In addition, in response to the claims raised
by Bunim and Sansoucie, the defendants argued that Section
36 was outside the Reservation boundaries, and therefore
within the County’s regulatory jurisdiction.
B. Procedural History.
The district court initially entered a preliminary
injunction prohibiting the defendants from “citing, arresting,
impounding the vehicles of, and prosecuting Chemehuevi
tribal members for on-reservation violations” of California
regulatory vehicle laws, including violations occurring on
Section 36. The court determined there were “at least
serious questions going to the merits” of whether Section 36
was “Indian country.”
But, the court later granted summary judgment to the
defendants, concluding that Section 36 was not part of the
Chemehuevi Reservation and therefore not Indian country
under 18 U.S.C. § 1151(a). In a motion to amend the
judgment, Ochoa and Lopez noted that they were not
ticketed in Section 36. The district court denied the motion,
holding that even if the plaintiffs were cited on the
Reservation, they failed to allege “a well-established
constitutional violation for purposes of their section 1983
claim.” The court reasoned that § 1983 “is concerned with
the relationship between individuals and the state, not the
distribution of power between state, federal, or tribal
governments,” and therefore neither the “right to be free of
6 CHEMEHUEVI INDIAN TRIBE V. MCMAHON
state regulation” nor “the right to tribal government” is
“within the scope of section 1983.” 1
The Tribe and the individual plaintiffs timely appealed.
We have jurisdiction of that appeal under 28 U.S.C. § 1291
and review the summary judgment de novo. Parravano v.
Babbitt, 70 F.3d 539, 543 (9th Cir. 1995).
II. Discussion.
A. Is Section 36 Indian Country?
We turn first to the question whether Section 36 is in the
Chemehuevi Reservation, and thus Indian country under
18 U.S.C. § 1151(a). But it is important also to note at the
outset what issues are not before us. We need not—and do
not—decide today who holds title to Section 36. Indian
country includes “all land within the limits of any Indian
reservation . . . notwithstanding the issuance of any patent.”
18 U.S.C. § 1151(a). “[A]djudicating reservation
boundaries is conceptually quite distinct from adjudicating
title to the same lands. One inquiry does not necessarily
have anything in common with the other, as title and
reservation status are not congruent concepts in Indian law.”
Navajo Tribe of Indians v. New Mexico, 809 F.2d 1455, 1475
(10th Cir. 1987) (internal quotation marks and footnote
omitted); see Solem v. Bartlett, 465 U.S. 463, 466–68
(1984).
1
The complaint also alleged that the citations “constitute[d] racial
discrimination in direct violation” of the Equal Protection Clause. The
district court held that “the specter of racial animus” was not “sufficient
to create a triable issue of fact that Defendants violated” the Fourteenth
Amendment. The plaintiffs do not challenge that ruling on appeal.
CHEMEHUEVI INDIAN TRIBE V. MCMAHON 7
Our inquiry as to the reservation status of Section 36
begins in 1853. After California gained statehood, Congress
ordered a survey of its public lands and granted the State title
to sections 16 and 36 of each township. 2 Act of March 3,
1853, ch. 145, 10 Stat. 244, 245–46. But, the 1853 Act
specifically excluded from that grant any land “in the
occupation or possession of any Indian tribe.” Id. at 246–47.
The Surveyor General approved a survey of the land at issue
in this case in 1895.
While that survey was being conducted, Congress
ordered the Secretary of the Interior “to select a reservation”
for each California Mission Indian tribe. Mission Indian
Relief Act, ch. 65, 26 Stat. 712, 712 (1891). The
reservations were to “include, as far as practicable, the lands
and villages which have been in the actual occupation and
possession of said Indians.” Id. Although the Secretary was
also instructed to “cause a patent to issue for each”
reservation, and thus transfer title to the land to the United
States as trustee for the tribes, the Act provided that the
reservations would be “valid when approved by the
[Executive Branch].” Id. In 1905, Congress authorized the
Secretary “to investigate through an inspector . . . existing
conditions of the California Indians and to report to
Congress at the next session some plan to improve the
same.” Act of March 3, 1905, ch. 1479, 33 Stat. 1048, 1058.
Special Agent C.E. Kelsey was then dispatched to visit
the Chemehuevi Tribe and identify territory for a
reservation. In 1907, Kelsey issued a report to the
2
See U.S. Geological Survey, The Public Land Survey System, The
National Map Small Scale (Jan. 18, 2018),
https://nationalmap.gov/small_scale/a_plss.html (explaining township,
range, and section designations).
8 CHEMEHUEVI INDIAN TRIBE V. MCMAHON
Commissioner of Indian Affairs, identifying land to be
included in the reservation. He specifically recommended
that the reservation include the eastern half of Township
5 North, Range 24 East (“E. 1/2 of T. 5 N., R. 24 E.”)—
which contains Section 36. Kelsey noted that this land was
the “present location” of the tribal members and that “there
is no question but they have occupied this land since
primeval times.” The Commissioner forwarded Kelsey’s
recommendation to the Secretary of the Interior.
In an executive order (the “1907 Order”), the Secretary
then “direct[ed] that the lands referred to” by Kelsey and the
Commissioner “be withdrawn from all form of settlement,”
and created the Chemehuevi Reservation. The Secretary
also asked Congress “to authorize the addition of certain
lands to the Mission Indian Reservations.” Although
Congress did not act upon this proposed legislation, it
subsequently recognized the existence of the Chemehuevi
Reservation in the Parker Dam Act, ch. 522, 54 Stat. 744
(1940).
It is clear that a Chemehuevi Reservation was validly
established by the Secretary’s 1907 Order, notwithstanding
the absence of subsequent Congressional approval. Indeed,
the Supreme Court has expressly so recognized:
Congress and the Executive have ever since
recognized these as Indian Reservations. . . .
They have been uniformly and universally
treated as reservations by map makers,
surveyors, and the public. We can give but
short shrift at this late date to the argument
that the reservations . . . are invalid because
they were originally set apart by the
Executive.
CHEMEHUEVI INDIAN TRIBE V. MCMAHON 9
Arizona v. California, 373 U.S. 546, 598 (1963); see also id.
at 596 & n.100. 3
The defendants argue that the 1907 Order was invalid ab
initio because Section 36 had already been deeded to
California. The factual premise of that argument, however,
is subject to question. The 1853 Act excluded any land “in
the occupation or possession of any Indian tribe,” 10 Stat.
at 246–47, and the Kelsey survey, adopted by the Secretary,
documents that Section 36 falls in that exception. The
district court erred in excluding the Kelsey report as hearsay.
It is plainly admissible as an ancient document, Fed. R. Evid.
803(16), which may contain multiple levels of hearsay.
30B Charles Alan Wright & Arthur R. Miller, Federal
Practice & Procedure § 6935 (2018 ed.) (“[E]xclusion of
statements in qualifying ancient documents on the grounds
that the author lacked firsthand knowledge, or (relatedly)
that the document contains hearsay-within-hearsay should
be rare.”). Review of historical documents is typical—
indeed often necessary—in cases involving the boundaries
of Indian reservations. See, e.g., Idaho v. United States,
533 U.S. 262, 265–71 (2001).
But, as noted, we need not today decide the extent of the
1853 land grant. “[E]xecutive orders must be liberally
construed in favor of establishing Indian rights,”
Confederated Tribes of Chehalis Indian Reservation v.
3
The defendants cite Arizona v. California, 460 U.S. 605, 636 n.26
(1983), for the proposition that “the secretarial orders do not constitute
‘final determinations.’” But, “the secretarial orders” at issue in that
litigation were issued in the 1960s and 1970s. See id. at 631–32. In 1919
and 1927, Congress “prohibited future changes in Indian reservations by
executive order.” United States v. S. Pac. Transp. Co., 543 F.2d 676,
686 & n.15 (9th Cir. 1976). That prohibition plainly does not affect the
1907 Order.
10 CHEMEHUEVI INDIAN TRIBE V. MCMAHON
Washington, 96 F.3d 334, 340 (9th Cir. 1996), and are
“interpreted as the Indians would have understood them,”
Parravano, 70 F.3d at 544. Given the language of the 1853
Act, the Kelsey report identifying Section 36 as land
occupied historically by Indians, and the express inclusion
of Section 36 in the 1907 Order, the Chemehuevi Tribe (and
indeed, the Secretary of the Interior) surely understood
Section 36 to be within the Reservation.
Nor can we conclude that the boundaries of the
Reservation as established in the 1907 Order were later
diminished. “We do not lightly infer diminishment of
reservations.” Confederated Tribes of Chehalis, 96 F.3d
at 343–44. After 1927, Congress prohibited any change to
the boundaries of existing executive-order reservations
except by Congressional act. Act of March 3, 1927, ch. 299,
§ 4, 44 Stat. 1347 (codified at 25 U.S.C. § 398d); see S. Pac.
Transp., 543 F.2d at 686 & n.15. There is no such act
removing Section 36 from the Chemehuevi Reservation.
The defendants also rely on a patent issued to the Tribe
by the Bureau of Land Management in 2010, which excluded
“[t]hose lands granted to the State of California . . . on July
10, 1895”—the date on which the government survey was
finalized—“located in . . . sec. 36, T. 5 N., R. 24 E.” But, as
noted above, we do not today adjudicate title. More
importantly, because the 2010 patent was issued over a
century after the Reservation was established, it provides no
evidence of the intent of the Executive or the understanding
of the Tribe in 1907. Nor can it, nor does it purport to,
diminish the Chemehuevi Reservation. The patent cites the
1907 Order, then grants some of the land covered by that
order to the Tribe in trust—an issue of ownership. It is silent
as to the reservation status of any land excluded from the
patent.
CHEMEHUEVI INDIAN TRIBE V. MCMAHON 11
We therefore conclude that Section 36 is within the
Chemehuevi Reservation and hence “Indian country” under
18 U.S.C. § 1151(a).
B. Can the Plaintiffs Sue Under § 1983?
California cannot enforce state law that regulates—but
does not prohibit—tribal members’ conduct inside a
reservation. Confederated Tribes of Colville Reservation v.
Washington, 938 F.2d 146, 147 (9th Cir. 1991) (citing
18 U.S.C. § 1162; 28 U.S.C. § 1360). The defendants
concede that the citations at issue involved regulatory laws
and therefore could not be issued against enrolled members
of the Tribe within the boundaries of the Reservation. See
id. at 148. But, they argue that even such citations cannot be
the subject of a § 1983 action.
We disagree. Section 1983 allows any “person” to sue
for the “deprivation of any rights, privileges, or immunities
secured by the Constitution and laws.” 42 U.S.C. § 1983.
Because § 1983 “was designed to secure private rights
against government encroachment,” Inyo Cty. v. Paiute-
Shoshone Indians of the Bishop Cmty. of the Bishop Colony,
538 U.S. 701, 712 (2003), tribal members can use it to
vindicate their “individual rights,” but not the tribe’s
“communal rights,” Skokomish Indian Tribe v. United
States, 410 F.3d 506, 515–16 (9th Cir. 2005) (en banc). And,
“traditional section 1983 suit[s]”—for example, those
challenging an arrest on tribal land—seek to vindicate an
“individual right.” See id. at 516 n.8 (citing Romero v.
Kitsap Cty., 931 F.2d 624, 627 n.5 (9th Cir. 1991)).
Bunim, Sansoucie, Ochoa, and Lopez’s claims are
“traditional” § 1983 suits. Each was stopped and detained
by a San Bernardino County Deputy; some had their vehicles
seized. They contend that their detentions and citations
12 CHEMEHUEVI INDIAN TRIBE V. MCMAHON
violated the Constitution and federal statutes. They have a
cause of action under § 1983 against the defendants.
The Tribe, however, does not have a § 1983 claim. An
Indian tribe “may not sue under § 1983 to vindicate” a
“sovereign right,” such as its right to be free of state
regulation and control. Inyo Cty., 538 U.S. at 712. Nor can
the Tribe assert its members’ individual rights as parens
patriae in a § 1983 action. To assert parens patriae
standing, the Tribe would have to “articulate an interest apart
from the interests of particular private parties,” i.e., “be more
than a nominal party,” and “express a quasi-sovereign
interest.” Missouri ex rel. Koster v. Harris, 847 F.3d 646,
651 (9th Cir. 2017). That requirement is inconsistent with a
§ 1983 action: quasi-sovereign interests are not individual
rights.
III. Conclusion.
The Chemehuevi Reservation, as established by the 1907
Order, includes Section 36. Section 36 is therefore Indian
country, and San Bernardino County does not have
jurisdiction to enforce California regulatory laws within it.
The individual plaintiffs may bring § 1983 claims against the
defendants. The Tribe, however, cannot assert its sovereign
rights under that statute. 4
AFFIRMED in part, VACATED and REMANDED
in part. Each party shall bear its own costs.
4
We take no position on any defenses, including immunity, the
defendants might have to the claims raised by the individuals.