Alvarado v. Table Mountain ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PEARL ALVARADO; ELISHIA ARENAS; 
MARIO ARENAS, JR.; DANNY
DANIELS; KATHLEEN DAVIS; CHREYL
DURAN; JEANINE GONZALES; DIANE
GRIGSBY; WAYNE GRIGSBY; PAULA
GUTIERREZ; CHAD ELLIOTT LEWIS;
CHERYL LEWIS; CLIFFORD LEWIS;
DONALD LEWIS; JERRY LEE LEWIS;
KATHY LYNNETTE LEWIS; KEVIN
LEWIS; LARRY PAUL LEWIS, JR.;
LISA LEWIS; LOUELLA LEWIS;
REGINA LEWIS; TRINA LEWIS-DAVIS;
CARL MEKEALIAN; CONNIE
No. 06-15351
MEKEALIAN; JENNIFER MEKEALIAN;
LORI MEKEALIAN; MIKE MEKEALIAN;
YVONNE MEKEALIAN; ALEX
 D.C. No.
CV-05-00093-MHP
MONTGOMERY; CLIFF MONTGOMERY; OPINION
FRANCINE MONTGOMERY; VINCENT
MORENO; VALENTINA OLIVER;
DARREN SORONDO,
Plaintiffs-Appellants,
v.
TABLE MOUNTAIN RANCHERIA, doing
business as Table Mountain
Rancheria Association; LEWIS
BARNES; WILLIAM WALKER; AARON
JONES; CAROLYN WALKER; TWILA
BURROUGH; LEANNE WALKER
GRANT; CRAIG MARTINEZ;

15357
15358 ALVARADO v. TABLE MOUNTAIN RANCHERIA
ROBBIE CASTRO; RAY BARNES; 
VERN CASTRO; DIRK KEMPTHORNE,*
in his official capacity as the
Secretary of the Dept. of Interior; 
UNITED STATES OF AMERICA,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Marilyn H. Patel, District Judge, Presiding
Argued and Submitted
October 16, 2007—San Francisco, California
Filed November 29, 2007
Before: Arthur L. Alarcón, David R. Thompson, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Alarcón
*Dirk Kempthorne is substituted for his predecessor, Gale Norton, as
Secretary of the Department of Interior, pursuant to Fed. R. App. P.
43(c)(2).
ALVARADO v. TABLE MOUNTAIN RANCHERIA 15361
COUNSEL
Brian C. Leighton, Clovis, California, for the appellants.
Paula M. Yost, Sonnenschein, Nath & Rosenthal, San Fran-
cisco, California; Timothy S. Jones, Sagaser, Franson &
Jones, Fresno, California; Sue Ellen Wooldridge, Assistant
Attorney General, United States Department of Justice, Wash-
ington, D.C., Katherine J. Barton, (argued), David B. Glazer
and Elizabeth A. Peterson, Department of Justice Environ-
ment & Natural Resources Division, Washington, D.C., for
the appellees.
OPINION
ALARCÓN, Circuit Judge:
Appellants appeal from the district court’s order dismissing
their complaint for lack of subject matter jurisdiction. Appel-
lants are individuals who unsuccessfully petitioned the Table
Mountain Tribal Council for admission to the Table Mountain
Rancheria, an Indian tribe. Their complaint sought an order
compelling the Table Mountain Rancheria to admit them as
members. The district court concluded that it lacked subject
matter jurisdiction over Appellants’ claims because this case
was indistinguishable from those in which tribal immunity
precludes federal court jurisdiction over tribal membership
15362 ALVARADO v. TABLE MOUNTAIN RANCHERIA
disputes. In so holding, the district court rejected Appellants’
attempts to establish subject matter jurisdiction.
Appellants contend that this case is distinguishable from
those in which tribal immunity precludes jurisdiction. They
claim that immunity does not apply because their claims do
not involve tribal membership disputes. Instead, they purport
to assert a collateral attack on the judgment in Table Moun-
tain Rancheria Association et al. v. James Watt, Secretary of
the Interior, No. C-80-4595-MHP. Also, they argue that the
district court had subject matter jurisdiction by virtue of its
ancillary authority to enforce the Watt settlement agreement,
and that the tribal Appellees’ immunity is waived because of
their participation in Watt. In passing, Appellants assert that
the district court had jurisdiction pursuant to 28 U.S.C.
§ 1346.
We have appellate jurisdiction over this timely appeal from
the district court’s final judgment pursuant to 28 U.S.C.
§ 1291, and affirm the judgment of dismissal. The district
court properly concluded that it lacked subject matter jurisdic-
tion to order Appellees to admit Appellants as members of the
Table Mountain Rancheria. We do not reach the issue of
whether tribal immunity defeats Appellants’ claims. Appel-
lants’ subject matter arguments suffer from a more fundamen-
tal flaw: Appellants have failed to establish that the district
court has subject matter jurisdiction over their causes of
action even if the Table Mountain Rancheria is not immune
from suit.
I
In or around 1916, the United States purchased a parcel of
land in Fresno County, California from private individuals,
and thereafter held the land in trust for the Table Mountain
Band of Indians. The land became known as the Table Moun-
tain Rancheria (“TMR”), and was considered an Indian Reser-
vation and “Indian Country” within the meaning of 18 U.S.C.
ALVARADO v. TABLE MOUNTAIN RANCHERIA 15363
§ 1151.1 Rancheria residents were recognized as Indians for
purposes of federal law.
On August 18, 1958, Congress enacted the California Ran-
cheria Act, Pub. L. No. 85-671, 72 Stat. 619 (1958). The Ran-
cheria Act, inter alia, authorized an exchange of title to
Rancheria assets, and a promise that the Bureau of Indian
Affairs (“BIA”) would continue to provide essential benefits,
such as irrigation and educational programs to Rancheria resi-
dents, if, in return, the TMR voluntarily relinquished its trust
status, and the TMR’s residents forfeited their Indian status.
A proposed plan for distribution of Rancheria land, drafted
pursuant to the Rancheria Act, divided the Rancheria into par-
cels, most of which were to be conveyed to individual Ran-
cheria residents. The remaining parcels were earmarked for
the Rancheria water system, and were to be conveyed to a
legal entity formed solely to receive the remaining parcels.
Sometime after July 31, 1959, the proposed plan was
approved. As a result, the Rancheria assets were distributed to
the Table Mountain Rancheria Association (“TMRA”)2 and
individual residents. In addition, the Rancheria lost its trust
status, and its residents lost their Indian status.
In 1980, the TMRA, several individuals who had forfeited
their Indian status in return for Rancheria assets, along with
1
“[T]he term ‘Indian country’ . . . means (a) all land within the limits
of any Indian reservation under the jurisdiction of the United States Gov-
ernment . . . , (b) all dependent Indian communities within the borders of
the United States whether within the original or subsequently acquired ter-
ritory thereof . . . , and (c) all Indian allotments, the Indian titles to which
have not been extinguished, including rights-of-way running through the
same.” 18 U.S.C. § 1151.
2
The Table Mountain Rancheria Association is described as “the gov-
erning body of the American Indian Tribe, Band, or Community consist-
ing of the Indians and their descendants and/or Indian successors in
interest for whose benefit the United States of America acquired and cre-
ated the Table Mountain Rancheria.”
15364 ALVARADO v. TABLE MOUNTAIN RANCHERIA
several dependent members of their families, filed a putative
class action, entitled Table Mountain Rancheria Association
et al. v. James Watt, Secretary of the Interior, et al., No. C-
80-4595-MHP (“Watt”), in the United States District Court
for the Northern District of California. The Watt complaint
named Clarence Jones, Lester Burrough, E.B. Barnes, Lewis
Barnes, and William Walker as plaintiffs,3 and the Secretary
of the Interior, the Secretary of Health and Human Services,
and the United States, as defendants.
The named plaintiffs in the Watt action sought to certify
two classes:
persons named in the distribution plan as distributees
of [TMR] assets . . . , or the[ir] Indian heir(s),
assign(s), executor(s), administrator(s), or succes-
sor(s) in interest . . . who, by reason of having been
named as distributees . . . were . . . considered by the
[federal] government . . . to have lost their status as
Indians under [federal law];
...
all Indian persons, other than distributees, who were
named in the [TMR] distribution plan as dependents
of distributees, and who, for that reason, were . . .
deemed by the United States . . . to have lost their
status as Indians under [federal law].
On April 11, 1983, the district court certified both classes.
The Watt plaintiffs alleged that the defendants failed to
inform the Rancheria residents who approved the distribution
3
The Watt complaint identifies plaintiffs Clarence Jones, Lester Bur-
rough, E.B. Barnes, Lewis Barnes, and William Walker as “persons
named in the final plan for the distribution of the assets . . . of the [TMR]
. . . as being distributees . . . of the assets of said Rancheria.”
ALVARADO v. TABLE MOUNTAIN RANCHERIA 15365
plan of “the obligations of the United States under the Ran-
cheria Act, the relative advantages and disadvantages of
accepting termination, the options available to them under the
Rancheria Act and the legal consequences of exercising those
options.” The Watt complaint further alleged that the Watt
defendants “caus[ed] plaintiff dependents to be ineligible to
receive federal services provided exclusively to Indians, and
to enjoy other federal rights available to Indians, including
such rights as having land held in trust for them.” (Emphasis
added).
The Watt complaint sought rescission of the distribution
plan and a declaration “that the purported termination of the
[plaintiffs’] Indian status . . . and the trust . . . status of the
lands of the Table Mountain Rancheria . . . is void . . . and
that plaintiff distributees [and dependents] have been and
remain eligible to participate in all federal programs and ben-
efits provided to Indians because of their status as Indians.”
(Emphasis added).
On March 28, 1983, the Watt parties stipulated to a settle-
ment and judgment. The stipulation provided that the named
plaintiffs
represent the class of persons certified as consisting
of all persons named in the distribution plan of the
Table Mountain Rancheria as distributees of the
assets of said Rancheria, or the Indian heir(s),
assign(s), executor(s), administrator(s), or succes-
sor(s) in interest thereof who, by reason of having
participated in the distribution of the assets of said
Rancheria at any time have been considered by the
government of the United States or any other gov-
ernmental entity to have lost their status as Indians
under the laws of the United States.
(Emphasis added). The stipulation also required the Secretary
of the Interior to list the Table Mountain Band of Indians as
15366 ALVARADO v. TABLE MOUNTAIN RANCHERIA
an Indian tribal entity under 25 C.F.R. Part 83.6(b), and per-
mit any class member or successor who received title to an
asset because of the 1959 distribution to “elect to restore any
such interest [to] federal trust status” by conveying it to the
United States for the benefit of the tribe. The Watt settlement
further stated that “[t]he status of the named individual plain-
tiffs and class members as Indians under the laws of the
United States is confirmed.” The settlement provided that
plaintiffs would dismiss their damages claims against the Sec-
retary of the Interior and the United States.
The district court approved the stipulated settlement on
June 16, 1983. The Watt court retained jurisdiction to enforce
the judgment for one year after its date of entry.
On December 14, 1983, the Secretary of the Interior pub-
lished a notice in the Federal Register, pursuant to 25 C.F.R.
§ 83.6(b), designating the TMR as a federally recognized “In-
dian tribal entity” eligible to receive services from the BIA.
Indian Tribal Entities Recognized and Eligible to Receive
Services from the United States Bureau of Indian Affairs, 48
Fed. Reg. 56,862-02, 56,866 (Dec. 14, 1983).4
Sometime thereafter, the TMR enacted a constitution and
4
This notice is somewhat inconsistent with the Watt settlement, which
required the Secretary of the Interior to list “the Table Mountain Band of
Indians as an Indian Tribal entity.” However, it also required the United
States to hold land in trust for “the Table Mountain Band of Indians or the
Indians of the Table Mountain Rancheria, as may be specified in the
instrument(s) of conveyance.” The Watt complaint identifies the Watt
plaintiffs as those individuals who lost their status as Indians under federal
law as a result of their participation in the Table Mountain distribution
plan, not as the individuals who made up the Table Mountain Band of
Indians. Also, the Watt plaintiffs are referred to collectively as “the Indi-
ans of the Table Mountain Rancheria.” Appellants seek admission to the
Table Mountain Rancheria, and identify that entity as “a party plaintiff in
[Watt].” Therefore, we refer to the tribe defendant in this case as the Table
Mountain Rancheria, not as the Table Mountain Band of Indians.
ALVARADO v. TABLE MOUNTAIN RANCHERIA 15367
established TMR membership requirements. Section 1 of the
constitution stated:
The membership of the TMR shall consist of the fol-
lowing:
(a) All persons of California Indian descent who
were listed as distributees or dependent members of
distributees in the plan for the distribution of the
assets of the Table Mountain Rancheria as approved
by the Commissioner of Indian Affairs on July 16,
1959.
(b) All lineal descendants of persons named on the
base roll provided such descendants possess at least
one-quarter (1/4) degree California Indian blood,
regardless of whether the ancestor through whom
eligibility is claimed is living or deceased.
The Table Mountain Tribal Council interprets and applies
these provisions.
After the adoption of the tribal constitution, the plaintiffs in
this action unsuccessfully petitioned the tribal council for
admission to the Table Mountain Rancheria. They alleged
entitlement to membership because they “are direct descen-
dants of and/or dependents of or off-spring of dependents of
distributees . . . of the 1958 distribution plan” and have the
requisite degree of California Indian blood.
II
On January 6, 2005, Plaintiffs/Appellants filed the instant
action in the United States District Court for the Northern
District of California, the same court in which the Watt action
was filed. They named as defendants the TMR,5 several mem-
5
The Watt complaint’s caption lists the TMR as “dba or successor to the
Table Mountain Rancheria Association.”
15368 ALVARADO v. TABLE MOUNTAIN RANCHERIA
bers of the Table Mountain Tribal Council, a former Table
Mountain Tribal Council chairperson, several current tribal
members who served as representatives of the plaintiff classes
in Watt, the Secretary of the Interior, and the United States.
The complaint in this action (“2005 complaint”) alleges a
claim for breach of the covenant of good faith and fair dealing
against all Appellees because of their purported failure to
insure that Appellants “were treated the same as the named
parties in [Watt].” The 2005 complaint seeks damages for this
particular breach against the non-government defendants, and
declaratory and injunctive relief against the United States and
the Secretary of the Department of the Interior. The 2005
complaint also alleges a claim for breach of fiduciary duty
against all non-government Appellees, who allegedly partici-
pated in an ongoing conspiracy to refuse appellants member-
ship in the tribe. Appellants allege that the duty arose by
virtue of the Appellees’ role as Watt class representatives. The
2005 complaint alleges that this particular breach entitled
Appellants to “any and all benefits provided by the [TMR] to
any and all members . . . which would include . . . casino prof-
its.”
Additionally, the 2005 complaint prays for an injunction
requiring the tribe to recognize Appellants as members of the
TMR; declaratory relief that Appellants are members of the
TMR and equally entitled to benefits “from the federal gov-
ernment and [TMR]” as are other members of the tribe; and
“a full accounting of any and all benefits bestowed by the fed-
eral government Defendants to Table Mountain Rancheria
and/or any of its members from 1983 to the present.” The
2005 complaint also seeks an order compelling the United
States and the Secretary of the Interior to order the TMR to
admit the plaintiffs as members.
On July 27, 2005, the district court granted in part and
denied in part the Appellees’ motion to dismiss for lack of
jurisdiction. It concluded that “neither an act of Congress nor
ALVARADO v. TABLE MOUNTAIN RANCHERIA 15369
the stipulated judgment in the Watt action provides any basis
for [the district court’s] exercise of jurisdiction over tribal
membership determinations.” In particular, the district court
concluded that the Indian Gaming Regulatory Act, 25 U.S.C.
§ 2701 et seq., did not confer subject matter jurisdiction to
determine whether the tribe or its officers “acted wrongfully
in denying [Appellants’] membership applications.” Also, the
district court distinguished Appellants’ claims from those
which attack a judgment collaterally, noting that Appellants
“have not elected to plead their case on [a collateral attack]
theory.”
Next, the district court noted that the relief sought against
the government defendants “appears to be premised upon the
fact that the Secretary of the Interior breached a duty owed to
[Appellants] by failing to order the Tribe to admit them as
members.” The district court concluded that Appellants
“failed to cite any federal statute or treaty” authorizing the
government defendants to force the TMR or its officers to
admit any particular individual as a member. Therefore, it
concluded that it lacked subject matter jurisdiction over the
breach of duty claims brought against the government defen-
dants.
Finally, the district court addressed the question of whether
Appellants could “maintain a claim for declaratory and
injunctive relief under the APA” in order to review the Secre-
tary of the Interior’s “failure to act upon a petition to admit
[Appellants] as members of [the TMR].” The district court
stated that the APA “gives rise to federal question jurisdic-
tion,” but only for claims brought against a federal agency,
and not claims brought against the United States. It deter-
mined that the 2005 complaint failed “to state a claim for
relief under the APA.” As a result, all claims against the tribal
defendants, the Watt plaintiffs, and the United States were
dismissed with prejudice. The APA claim against the Secre-
tary of the Interior was “dismissed without prejudice” with
15370 ALVARADO v. TABLE MOUNTAIN RANCHERIA
leave to amend. No amendment was filed. The complaint was
dismissed in its entirety on December 6, 2005.
III
Appellants contend that the district court erred in ruling
that it lacked subject matter jurisdiction over their claims. We
review a dismissal for lack of subject matter jurisdiction de
novo. Lewis v. Norton, 424 F.3d 959, 961 (9th Cir. 2005).
A
As a preliminary matter, we address Appellants’ attempt to
distinguish this case from those in which tribal immunity pre-
cludes federal court jurisdiction over tribal membership dis-
putes. See, e.g., Opening Br. at 51 (“[T]he tribe does not have
immunity . . . since it waived that immunity in its pursuit as
a party plaintiff in [Watt].”). We do not reach this contention,
because even if it had merit, it would not mandate reversal.
Appellees contend that the district court lacked subject matter
jurisdiction because “Appellants’ complaint contains no fed-
eral claim for relief.” Tribal Appellees’ Resp. Br. at 11. We
agree and affirm on this ground.
[1] Sovereign immunity limits a federal court’s subject
matter jurisdiction over actions brought against a sovereign.
Vacek v. United States Postal Serv., 447 F.3d 1248, 1250 (9th
Cir. 2006). Similarly, tribal immunity precludes subject mat-
ter jurisdiction in an action against an Indian tribe. Lewis, 424
F.3d at 961. Yet the absence of immunity does not establish
the presence of subject matter jurisdiction. Rather, the corner-
stone of federal subject matter jurisdiction is statutory authori-
zation. See, e.g., Exxon Mobil Corp. v. Allapattah Servs., 545
U.S. 546, 553 (2005) (“[F]ederal courts have no jurisdiction
without statutory authorization.”).
[2] To confer subject matter jurisdiction in an action
against a sovereign, in addition to a waiver of sovereign
ALVARADO v. TABLE MOUNTAIN RANCHERIA 15371
immunity, there must be statutory authority vesting a district
court with subject matter jurisdiction. See, e.g., Arford v.
United States, 934 F.2d 229, 231 (9th Cir. 1991) (explaining
that in order to maintain an action against the United States,
there must be both “statutory authority granting subject matter
jurisdiction” and “a waiver of sovereign immunity”). There-
fore, to establish that the district court had subject matter
jurisdiction over their claims, Appellants cannot rest on the
assertion that principles of immunity do not apply. Rather,
Appellants must establish some form of statutory authoriza-
tion for their claims. See Vacek, 447 F.3d at 1250 (quoting
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994)) (explaining that the party asserting jurisdiction has the
burden of establishing jurisdiction).
The district court described federal courts’ hesitation to
intrude upon matters of tribal membership as a “straightfor-
ward application of the doctrine of sovereign immunity.”
However, Appellants’ case is more infirm than those in which
we have found a lack of subject matter jurisdiction as a result
of tribal immunity. Indeed, the leading cases on federal juris-
diction over tribal matters arise in the context of claims for
which a federal court’s has federal question jurisdiction. See
Donovan v. Coeur d’Alene Tribal Farm, 751 F.2d 1113, 1116
(9th Cir. 1985) (explaining that respect for tribal self-
government exempts “purely intramural matters such as con-
ditions of tribal membership, inheritance rules, and domestic
relations from the general rule that otherwise applicable fed-
eral statutes apply to Indian tribes”); Santa Clara Pueblo v.
Martinez, 436 U.S. 49, 51-52 (1978) (declining to read Title
I of the Indian Civil Rights Act of 1968 (ICRA), 25 U.S.C.
§§ 1301-1303, to authorize a cause of action in federal court
for declaratory and injunctive relief to enforce the ICRA’s
substantive provisions). Tribal immunity in those cases pre-
cluded jurisdiction even though the claims at issue implicated
15372 ALVARADO v. TABLE MOUNTAIN RANCHERIA
federal statutes. As explained below, Appellants’ arguments
fail regardless of whether tribal immunity applies.6
B
Appellants first contend that the district court mistakenly
analyzed their claims as membership disputes beyond the
court’s jurisdiction. They argue that their claims are collateral
attacks on the Watt judgment. They allege that the Appellees
who served as class representatives in Watt provided inade-
quate representation.
[3] Presumably, this theory attempts to establish subject
matter jurisdiction by asserting a due process violation. See
Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985)
(“[T]he Due Process Clause of course requires that the named
plaintiff at all times adequately represent the interests of the
absent class members.”). A due process claim provides sub-
ject matter jurisdiction when it is supported by facts “suffi-
cient to state a violation of substantive or procedural due
process.” Anderson v. Babbitt, 230 F.3d 1158, 1163 (9th Cir.
2000) (internal quotation marks omitted).
[4] Characterizing Appellants’ claims as collateral attacks
on the Watt judgment does not establish that the district court
had subject matter jurisdiction. The 2005 complaint does not
collaterally attack the Watt judgment. Instead, it alleges that
Appellees failed to comply with and effectuate the Watt set-
tlement. See, e.g., 2005 Complaint at 26 (requesting that “this
Court . . . issue declaratory judgment . . . that these Defen-
dants . . . must comply with the stipulated judgment [in Watt]
6
In approaching subject matter jurisdiction in this manner, we do not
criticize the district court’s immunity-based conclusions. The holding in
Santa Clara Pueblo v. Martinez has been interpreted to preclude federal
court jurisdiction over challenges to tribal membership on the basis that
tribes are immune from suit. Lewis, 424 F.3d at 961. We reach the same
conclusion as the district court, but rely on a more basic, although in no
way superior, principle.
ALVARADO v. TABLE MOUNTAIN RANCHERIA 15373
. . .”). Claims of inadequate representation are nowhere to be
found in Appellants’ 2005 complaint. As a result, we may not
consider this claim because it is raised for the first time on
appeal. See Cold Mt. v. Garber, 375 F.3d 884, 891 (9th Cir.
2004).
C
In concluding that it lacked jurisdiction to enforce the Watt
judgment, the district court found that the relief Appellants
sought was beyond the scope of the Watt judgment. Also, it
determined that the terms of the Watt settlement provided
jurisdiction to enforce the settlement only through June 16,
1984. The district court concluded that Appellants could not
resort to principles of ancillary jurisdiction to overcome sov-
ereign immunity.
Appellants challenge the district court’s determination that
it lacked ancillary jurisdiction to enforce the Watt judgment.
First, Appellants argue that the district court erred in deter-
mining that they could not seek enforcement of the Watt set-
tlement because they were not parties in Watt. Next, they
contend that the district court erred in concluding that Watt
did not involve questions of tribal membership. Third, they
argue that the government appellees are bound by the Watt
judgment.
The fact that Watt was a federal lawsuit does not establish
jurisdiction over an action to enforce the terms of its settle-
ment. See O’Connor v. Colvin, 70 F.3d 530, 532 (9th Cir.
1995) (stating that federal courts do not enjoy any inherent
jurisdiction to enforce a settlement agreement “simply
because the subject of that settlement was a federal lawsuit”).
In general, “[e]nforcement of [a] settlement agreement . . .
whether through award of damages or decree of specific per-
formance, is more than just a continuation or renewal of the
dismissed suit, and hence requires its own basis for jurisdic-
tion.” Kokkonen, 511 U.S. at 378.
15374 ALVARADO v. TABLE MOUNTAIN RANCHERIA
[5] The doctrine of ancillary jurisdiction provides an excep-
tion to this rule. Federal courts have ancillary jurisdiction
“over some matters (otherwise beyond their competence) that
are incidental to other matters properly before them.” Id. Spe-
cifically, a federal court has jurisdiction to enforce a settle-
ment agreement in a dismissed case when the dismissal order
incorporates the settlement terms, or the court has retained
jurisdiction over the settlement contract. Id. at 381-82. In both
instances, the party seeking enforcement of the settlement
agreement must allege a violation of the settlement agreement
in order to establish ancillary jurisdiction. See O’Connor, 70
F.3d at 532 (“Without a violation of the court’s order, there
is no jurisdiction.”).
[6] The district court did not err in holding that it lacked
ancillary jurisdiction over Appellants’ claims. Appellants
have not alleged violations of the Watt settlement. Their 2005
complaint is premised on the allegation that they were wrong-
fully excluded from membership in the TMR. This allegation
does not constitute a violation of the Watt settlement because
the Watt settlement did not establish membership in the TMR
either expressly or by implication. Rather, the settlement pro-
vided that “[t]he status of the named individual plaintiffs and
class members as Indians under the laws of the United States
is confirmed.”
Appellants cite no authority for the proposition that gaining
Indian status under federal law is equivalent to acquiring
membership in a tribe. The requirements that determine
Indian status “vary depending upon the purpose for which
Indian status is claimed.” United States v. Bruce, 394 F.3d
1215, 1222 (9th Cir. 2005). In at least one instance, “[t]ribal
enrollment is ‘the common evidentiary means of establishing
Indian status, but it is not the only means nor is it necessarily
determinative.’ ” Id. at 1224 (citation omitted) (defining
Indian status for purposes of 18 U.S.C. § 1152). We are not
persuaded that the Watt judgment determined the Watt plain-
tiffs’ membership in a tribe simply because it made findings
ALVARADO v. TABLE MOUNTAIN RANCHERIA 15375
regarding the plaintiffs’ Indian status. Whether any of the
Appellees have failed to recognize Appellants as tribe mem-
bers is immaterial for purposes of the district court’s jurisdic-
tion. Appellants’ 2005 complaint did not allege a violation of
the Watt settlement within the district court’s ancillary juris-
diction.
[7] Appellants also cannot assert ancillary jurisdiction by
virtue of the Watt settlement’s retention of jurisdiction. The
Watt settlement only extended jurisdiction “for a period of
one year from entry of judgment, or for such longer time as
may be shown to be necessary on a motion duly noticed by
any party within one year from entry of judgment.” The Watt
judgment was entered on June 16, 1983. Therefore, whatever
ancillary jurisdiction the district court had expired on June 16,
1984.
D
In their statement of jurisdiction, Appellants assert that the
district court had jurisdiction pursuant to “28 U.S.C. § 1331,
and 28 U.S.C. § 1346, as the United States or an agency of the
United States was a defendant in the matter.” Opening Br. at
8. We surmise that this is an attempt to establish federal ques-
tion jurisdiction. This attempt also fails.
[8] The only arguably relevant provisions of 28 U.S.C.
§ 1346 vest the district courts with original jurisdiction over
civil actions in which the United States is the defendant. Pur-
suant to Section 1346(a)(2), district courts have subject matter
jurisdiction over certain types of civil actions “against the
United States, not exceeding $10,000 in amount, founded
either upon the Constitution, or any Act of Congress, or any
regulation of an executive department, or upon any express or
implied contract with the United States.” Appellants’ claims
are not founded on the Constitution, an Act of Congress, or
a regulation of an executive department. To the extent that
they are founded on a breach of the settlement agreement,
15376 ALVARADO v. TABLE MOUNTAIN RANCHERIA
Section 1346(a)(2) does not establish jurisdiction on that
ground because it “impliedly forbids” the only kind of relief
(declaratory and injunctive) sought against the United States.
North Side Lumber Co. v. Block, 753 F.2d 1482, 1485 (9th
Cir. 1985).
[9] Section 1346(b)(1), the Federal Tort Claims Act
(FTCA), waives the United States’ sovereign immunity “in a
defined category of cases involving negligence committed by
federal employees in the course of their employment.” Dolan
v. United States Postal Serv., 546 U.S. 481, 484 (2006).
Appellants cannot establish subject matter jurisdiction
through the FTCA because they have not administratively
exhausted their claims. See Jerves v. United States, 966 F.2d
517, 518 (9th Cir. 1992) (explaining that “[t]he Federal Tort
Claims Act . . . vests the federal district courts with exclusive
jurisdiction over suits arising from the negligence of Govern-
ment employees,” but “before an individual can file an action
against the United States in district court, she must seek an
administrative resolution of her claim” to establish subject
matter jurisdiction).
E
Finally, we conclude that the district court did not err in
failing to consider whether it had original jurisdiction over
Appellants’ APA claim brought against the Secretary of the
Interior, and supplemental jurisdiction over Appellants’
remaining state law claims.
The APA provides for judicial review of “[a]gency action
made reviewable by statute and final agency action for which
there is no other adequate remedy in a court.” 5 U.S.C. § 704.
The district court dismissed the APA claim brought against
the United States for lack of subject matter jurisdiction, con-
cluding that “claims under the APA must be filed against a
federal ‘agency’ within the meaning of 5 U.S.C. § 551(1).”
The district court dismissed the APA claim brought against
ALVARADO v. TABLE MOUNTAIN RANCHERIA 15377
the Secretary of the Interior because Appellants did not allege
that they had exhausted their administrative remedies. How-
ever, the district court noted that “[t]here is some chance . . .
that [Appellants] can state a claim for relief under the APA”
based on the Secretary of the Interior’s duty “to order the
[TMR] to admit them as members,” and granted leave to
amend that claim. Appellants did not amend their APA claim
against the Secretary of the Interior, and as a result, the dis-
trict court later dismissed the entire 2005 complaint with prej-
udice.
The district court did not expressly address the question of
whether it had subject matter jurisdiction over the APA claim
brought against the Secretary of the Interior. Therefore, dis-
missal of that claim did not resolve the questions of whether
the district court had to assume supplemental jurisdiction over
Appellants’ state law claims, or whether it could decline to
exercise supplemental jurisdiction over the state law claims.
See 28 U.S.C. §§ 1367(a), (c).
We do not review the district court’s failure to address
those issues. Rather, we affirm the district court’s dismissal of
the APA claim brought against the Secretary of the Interior,
and its dismissal of the 2005 complaint as a whole, on an
alternate ground supported by the record. See Atel Fin. Corp.
v. Quaker Coal Co., 321 F.3d 924, 926 (9th Cir. 2003) (per
curiam) (“We may affirm a district court’s judgment on any
ground supported by the record, whether or not the decision
of the district court relied on the same grounds or reasoning
we adopt.”).
[10] In their opposition to Appellees’ motion to dismiss,
Appellants alleged that their APA claim related to the Secre-
tary of the Interior’s failure to comply with its duty under the
Watt judgment, and the Secretary’s “statutory duty under Part
290 of Title 25, C.F.R.” This claim seeks to compel agency
action. See § 706(1) (providing a cause of action to “compel
agency action unlawfully withheld or unreasonably delayed”).
15378 ALVARADO v. TABLE MOUNTAIN RANCHERIA
Therefore, it “ ‘can proceed only where a plaintiff asserts that
an agency failed to take a discrete agency action that it is
required to take.’ ” Gros Ventre Tribe v. United States, 469
F.3d 801, 814 (9th Cir. 2006) (quoting Norton v. S. Utah Wil-
derness Alliance, 542 U.S. 55, 64 (2004)). Absent such an
assertion, a Section 706(1) claim may be dismissed for lack
of jurisdiction. Id.[11] Appellants did not provide any authority for the propo-
sition that any federal agency was required to order the TMR
to admit Appellants as members. In fact, “Appellants decided
not to amend the complaint on the APA issue, because of the
relative unimportance of that issue, and because it would have
delayed appeal of the matter.” Opening Br. at 5 n.1. As dis-
cussed infra, the Watt settlement did not require the Secretary
of the Interior to force the TMR to admit Appellants as mem-
bers. Because Appellants failed to allege any authority to sup-
port their APA claim, the district court lacked jurisdiction
over the only claim that might have established original juris-
diction (i.e., federal question jurisdiction under 28 U.S.C.
§ 1331). As a result, the district court could not assert supple-
mental jurisdiction over any remaining state law claims, and
the 2005 complaint was properly dismissed in its entirety.
AFFIRMED.