                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             DEC 11 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT

CALIFORNIA VALLEY MIWOK TRIBE                    No. 17-16321
et al.,
                                                 D.C. No.
              Plaintiffs-Appellants,             2:16-cv-01345-WBS-CKD

 v.
                                                 MEMORANDUM*
RYAN K. ZINKE, in his official capacity
as U.S. Secretary of Interior; et al.,

              Defendants-Appellees,

CALIFORNIA VALLEY MIWOK TRIBE
et al.,

              Intervenor-Defendants-
              Appellees.


                    Appeal from the United States District Court
                       for the Eastern District of California
                    William B. Shubb, District Judge, Presiding

                     Argued and Submitted November 15, 2018
                             San Francisco, California




      *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: GRABER, THACKER,** and BENNETT, Circuit Judges.

      Plaintiff California Valley Miwok Tribe ("Tribe"), represented by the Burley

Council, appeals from summary judgment entered in favor of Defendants the

California Valley Miwok Tribe, represented by the Dixie Council, and the United

States. The district court held that the 2015 Decision ("Decision") by the Assistant

Secretary–Indian Affairs ("Assistant Secretary") did not violate the Administrative

Procedure Act ("APA"). Reviewing de novo, Chemehuevi Indian Tribe v. Jewell,

767 F.3d 900, 903 (9th Cir. 2014), we affirm.

      The district court correctly held that the Decision did not violate the APA.1

Tribal membership is a matter to be determined by the tribe, Santa Clara Pueblo v.

Martinez, 436 U.S. 49, 72 n.32 (1978), but the Department of the Interior also has

the responsibility to ensure that organized tribes are representative of potential

membership, Aguayo v. Jewell, 827 F.3d 1213, 1226 (9th Cir. 2016). The

Decision comported with that responsibility.

      The Assistant Secretary recounted the Tribe’s long litigation history but did

not rely on those earlier court holdings to reach a decision. Instead, the Assistant


      **
        The Honorable Stephanie Dawn Thacker, Circuit Judge for the United
States Court of Appeals for the Fourth Circuit, sitting by designation.
      1
       We assume, without deciding, that issue preclusion does not bar our
consideration of these issues on the merits.
                                           2
Secretary independently examined the facts and the law, before determining that

the Tribe was not reorganized, that its membership is not limited to five

individuals, and that the United States does not recognize leadership of the tribal

government. The Decision was not arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with the law, and therefore did not violate the APA.

Aguayo, 827 F.3d at 1226.

      AFFIRMED.




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