Mishewal Wappo Tribe of Av v. Sally Jewell , 688 F. App'x 480 ( 2017 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
APR 24 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MISHEWAL WAPPO TRIBE OF No. 15-15993
ALEXANDER VALLEY,
D.C. No. 5:09-cv-02502-EJD
Plaintiff-Appellant,
v. MEMORANDUM*
RYAN ZINKE; MICHAEL BLACK,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Argued and Submitted March 13, 2017
San Francisco, California
Before: WARDLAW and GOULD, Circuit Judges, and HUFF,** District Judge.
The Mishewal Wappo Tribe of Alexander Valley (the Tribe) sued the
Secretary and Assistant Secretary of the Department of Interior (the Federal
Defendants), asserting claims for breach of fiduciary duty and violations under the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Marilyn L. Huff, United States District Judge for the
Southern District of California, sitting by designation.
Administrative Procedure Act. The district court granted the Federal Defendants’
motion for summary judgment, holding that (1) all of the Tribe’s claims depended
on the allegation that the Secretary of the Interior improperly terminated the
Alexander Valley Rancheria in violation of the California Rancheria Act (CRA),
(2) the claim of improper termination accrued no later than 1961, (3) the six-year
statute of limitations found at 28 U.S.C. § 2401(a) barred that claim (and
consequently all of the Tribe’s claims), and (4) the Tribe did not provide evidence
to establish the statute of limitations should be equitably tolled. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
(1) The district court correctly concluded that all of the Tribe’s claims relied
upon a central allegation that the Federal Defendants unlawfully terminated the
Alexander Valley Rancheria. We decline to address the Tribe’s new argument that
termination of the Rancheria did not terminate its status as a federally recognized
tribe because the Tribe did not raise this argument before the district court. See
Robinson v. Jewell, 790 F.3d 910, 915 (9th Cir. 2015).
(2) The Tribe argues that the United States owes a continuing fiduciary duty
to the Tribe, and that the existence of this duty precludes the running of the statute
of limitations. We do not decide whether the Federal Defendants owe a fiduciary
duty to the Tribe. If there is such a duty in this case, the existence of such a duty
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does not at all prevent the statute of limitations from running under the
circumstances presented here.
The general rule, to which we adhere, is that: “Indian Tribes are not exempt
from statutes of limitations governing actions against the United States.” Sisseton-
Wahpeton Sioux Tribe, of Lake Traverse Indian Reservation, N.D. & S.D. v. United
States, 895 F.2d 588, 592 (9th Cir. 1990). The statute of limitations begins to run
in a breach of trust claim “when the trustee repudiates the trust and the beneficiary
has knowledge of the repudiation.” Cohen’s Handbook of Federal Indian Law
§ 5.06[5], at 444 (2012 ed.). A trustee may expressly or impliedly repudiate the
trust “by taking action inconsistent with duties imposed by the trust.” Id. The
statute of limitations begins to run when the beneficiary has either actual or
constructive notice of the repudiation, whether or not the fiduciary’s repudiation
results in the lawful termination of its trust relationship. See id. at 445 & n.51
(citing Hopland Band of Pomo Indians v. United States, 855 F.2d 1573, 1575–77
(Fed. Cir. 1988) (holding claims against the United States for the termination of the
Hopland Rancheria were barred by the statute of limitations, even though it was
later determined that the termination violated the CRA and the United States
recognized a trust relationship with the Hopland Band).
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It is undisputed that the Federal Defendants published notice of the
termination of the Rancheria in the Federal Register in 1961, along with a list of
those who would receive land. See 26 Fed. Reg. 6875 (Aug. 1, 1961). This
publication was “legally sufficient notice . . . [,] regardless of actual knowledge or
hardship resulting from ignorance,” to put the Tribe on notice of the Federal
Defendants’ alleged breach of their fiduciary duty and to trigger the statute of
limitations. Shiny Rock Mining Corp. v. United States, 906 F.2d 1362, 1364 (9th
Cir. 1990) (quoting Friends of Sierra R.R., Inc. v. I.C.C., 881 F.2d 663, 667–68
(9th Cir. 1989)). Absent tolling, the statute of limitations expired in 1967, decades
before the Tribe filed the instant suit. See 28 U.S.C. § 2401(a).
We decline to address the Tribe’s argument, raised for the first time on
appeal, that the statute of limitations was never triggered because the Federal
Defendants have not repudiated their fiduciary duty in any way. See Robinson,
790 F.3d at 915.
(3) The Tribe did not diligently pursue its rights or show that extraordinary
circumstances prevented it from doing so. Equitable tolling is therefore not
appropriate. See Kwai Fun Wong v. Beebe, 732 F.3d 1030, 1052 (9th Cir. 2013)
(the party seeking equitable tolling must establish: “(1) that [it] has been pursuing
[its] rights diligently, and (2) that some extraordinary circumstances stood in [its]
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way.” (internal quotation marks omitted)), aff’d, United States v. Kwai Fun Wong,
135 S. Ct. 1625 (2015).
The Tribe argues that the Federal Defendants induced it to not file an action
or proceed through the administrative recognition process by representing in
various ways that the Federal Defendants would restore the Tribe’s status as a
federally recognized Tribe. The earliest piece of evidence the Tribe cites to
support this claim is a 1987 letter from the Area Director of the Sacramento Area
Office of the Bureau of Indian Affairs recommending that the BIA adopt a policy
to extend federal recognition to various rancherias, including “Alexander Valley.”
Even assuming this letter induced the Tribe to refrain from pursuing other avenues
of recognition or litigation to rectify the purportedly unlawful termination of the
Rancheria, it was issued about 26 years after the Rancheria was terminated. See 26
Fed. Reg. 6875 (Aug. 1, 1961). The 1987 letter could not warrant tolling of the
statute of limitations for the 20 years beforehand. The Tribe did not meet its
burden to support equitable tolling.
AFFIRMED.
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