Timothy John v. Secretary of the Interior ( 2020 )

FILED
NOT FOR PUBLICATION
JUN 10 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TIMOTHY AARON JOHN; TRAVIS No. 18-17245
RAY JOHN; TIFFANY LYNNAE JOHN;
TYRONE FRED JOHN; JESSIE WADE D.C. No.
PALMER; LESLIE L. PALMER; 3:14-cv-00247-LRH-VPC
SHIRLEY L. PALMER; JALEEN M.
FLOWERS, AKA Jalene Palmer Flowers,
MEMORANDUM*
Plaintiffs-Appellants,
v.
SECRETARY OF THE INTERIOR,
through its Acting Assisting Secretary
Bureau of Indian Affairs,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted June 8, 2020**
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: SCHROEDER and BRESS, Circuit Judges, and McSHANE,*** District
Judge.
Appellants Timothy John et al. appeal the district court’s decision granting
summary judgment to the Secretary of the Interior. Appellants argue that the
Secretary’s decision to exclude them from the Western Shoshone Judgment Roll
was arbitrary, capricious, and unlawful. We have jurisdiction under 28 U.S.C.
§ 1331, and we affirm.
Appellants filed their initial applications to be included on the Western
Shoshone Judgment Roll in 2010. The Bureau of Indian Affairs Regional Office
denied their request. The Regional Office found that because Appellants’ great-
great grandmother Hattie Dyer was not 4/4 Shoshone, all eight Appellants lacked
the requisite blood quantum level to be included on the roll. The Acting Assistant
Secretary of Indian Affairs—on behalf of the Secretary of the Interior—upheld the
Regional Office’s determination. Appellants then filed this lawsuit, claiming that
the decision was arbitrary and capricious, and unsupported by substantial evidence.
Appellants concede that if Hattie Dyer was anything less than 4/4 Shoshone, they
are ineligible for inclusion on the Judgment Roll.
***
The Honorable Michael J. McShane, United States District Judge for
the District of Oregon, sitting by designation.
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Appellants argue that because the traditional census rolls typically relied
upon by the Secretary show that Hattie Dyer was 4/4 Shoshone, the Secretary
arbitrarily and capriciously determined that she was one-half Paiute when he relied
on other evidence in the decision. The regulations here, however, permit the
Secretary to consider “other documents acceptable to the Secretary” in evaluating
whether an individual is eligible for inclusion on the Western Shoshone Judgment
Roll. See 25 C.F.R. § 61.4(k)(2). The Secretary relied upon the evidence from the
1977 Northern Paiute Judgment Roll appeal filed by Hattie’s daughter, as well as
the Administrative Law Judge’s letter from Hattie Dyer’s probate hearing, when
the Secretary determined that Appellants are ineligible for benefits from the Roll.
These materials both indicate that Hattie Dyer was not full-blooded Shoshone, and
provide substantial evidence supporting the Secretary’s determination that Hattie
Dyer was at least one-half Paiute. Because the Secretary permissibly concluded
that Hattie Dyer was not 4/4 Shoshone, his decision to exclude Appellants from the
Western Shoshone Judgment Roll was lawful.
Appellants additionally argue that the Secretary’s reliance on the 1977
Northern Paiute Judgment Roll appeal violates their due process rights because
they were unable to present evidence at that proceeding. Yet the record here shows
that the Secretary weighed the evidence supporting that prior determination, along
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with all other evidence of Hattie Dyer’s blood quantum in this proceeding.
Appellants also were not deprived of any property interest during the 1977
Northern Paiute Judgment Roll appeal which took place before they were born.
Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999) (explaining that the
first inquiry is whether there has been a deprivation of property). Thus, there was
no due process violation.
AFFIRMED.
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