                                                                           FILED
                            NOT FOR PUBLICATION
                                                                            SEP 20 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ALBERT P. ALTO; et al.,                          No.   15-56527

              Plaintiffs-Appellants,             D.C. No.
                                                 3:11-cv-02276-BAS-BLM

 v.
                                                 MEMORANDUM*
SALLY JEWELL, Secretary of
Department of Interior; et al.,

              Defendants-Appellees,

  and

SAN PASQUAL BAND OF MISSION
INDIANS,

              Intervenor.



ROLAND ALTO, Sr.; et al.,                        No.   15-56679

              Plaintiffs-Appellants,             D.C. No.
                                                 3:11-cv-02276-BAS-BLM
 and

SAN PASQUAL BAND OF MISSION
INDIANS,

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                                                                          Page 2 of 5

              Intervenor,

 v.

SALLY JEWELL, Secretary of
Department of Interior; et al.,

              Defendants-Appellees.


                   Appeal from the United States District Court
                      for the Southern District of California
                   Cynthia A. Bashant, District Judge, Presiding

                     Argued and Submitted September 2, 2016
                              Pasadena, California

Before: SILVERMAN, IKUTA, and WATFORD, Circuit Judges.

      1. The plaintiffs incorrectly contend that Assistant Secretary Larry Echo

Hawk’s January 28, 2011, decision approving their disenrollment was precluded

by the April 10, 1995, enrollment order issued by then-Assistant Secretary Ada E.

Deer. In an earlier appeal, we held that under Article III, section 2 of the Band’s

Constitution, Assistant Secretary Echo Hawk had the authority to resolve this

enrollment dispute. Alto v. Black, 738 F.3d 1111, 1124 (9th Cir. 2013). The

Band’s Constitution expressly incorporates the provisions of 25 C.F.R. Part 48,

which govern enrollment decisions for the Band. See id. at 1116. Part 48

authorizes the disenrollment of Band members whose initial enrollment decision
                                                                          Page 3 of 5
“was based on information subsequently determined to be inaccurate.” 25 C.F.R.

§ 48.14(d).

      The plaintiffs contend that 25 C.F.R. § 48.11 (or its counterpart at 25 C.F.R.

§ 76.14) rendered Assistant Secretary Deer’s decision “final and conclusive” and

therefore unreviewable, but that contention lacks merit. Under § 48.11, an

enrollment decision by the Assistant Secretary ordinarily will be final and

conclusive—unless, under § 48.14(d), new evidence is presented demonstrating

that the prior enrollment decision “was based on information subsequently

determined to be inaccurate.” Here, as explained below, that standard was met.

Assistant Secretary Deer predicated her enrollment decision on the assumption that

Marcus Alto Sr. was the biological son of Jose and Maria Alto, and the Band’s

Enrollment Committee submitted new evidence indicating that her assumption was

inaccurate. Thus, Assistant Secretary Echo Hawk had the authority under

§ 48.14(d) to review the prior decision. (Even if the Part 76 regulations applied, as

the plaintiffs contend, those regulations also permit the disenrollment of members

whose enrollment was based on information subsequently determined to be

inaccurate. See 25 C.F.R. § 76.4(b).)

      2. Based on a thorough review of the record, we conclude that Assistant

Secretary Echo Hawk’s decision approving the plaintiffs’ disenrollment was not
                                                                           Page 4 of 5
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

law.” 5 U.S.C. § 706(2)(A).

      Several documents support the finding that Maria Alto was not Marcus Alto

Sr.’s biological mother. The newly submitted 1907 baptismal certificate for

Marcus Alto Sr. lists “Benedita Barrios,” not Maria Alto, as his mother. Newly

submitted affidavits from Band members also support that finding, as does Maria

Alto’s enrollment application from 1930, which states that she had “no issue.”

      The evidence presented to Assistant Secretary Echo Hawk likewise supports

the finding that Jose Alto was not Marcus Alto Sr.’s biological father. Although

the 1907 baptismal certificate lists a “Jose Alto” as Marcus Alto Sr.’s father,

Assistant Secretary Echo Hawk reasonably concluded that other evidence was

more “telling” as to whether Marcus Alto Sr. was Jose Alto’s biological son, in

particular, the family’s failure to list Marcus Alto Sr. on each of the Band’s

censuses from 1907 to 1913 while listing Jose Alto’s son Frank on each of them.

The fact that other families may have omitted some of their biological children

from those early censuses did not preclude Assistant Secretary Echo Hawk from

affording weight to Marcus Alto Sr.’s omission from the same censuses. Assistant

Secretary Echo Hawk also reasonably concluded that two letters from Frank Alto

in 1910—which identified Jose, Maria, and Frank as members of the Alto family,
                                                                          Page 5 of 5
but not Marcus—corroborated his finding that Marcus Alto Sr. was not the

biological son of Jose or Maria Alto.

      Finally, Assistant Secretary Echo Hawk identified several other documents

that support the finding that Marcus Alto Sr. was not a blood member of the Band.

They include Dr. Shipek’s affidavit in which she stated that each Band elder

recalled that Jose and Maria Alto had raised a non-Indian child, and several newly

submitted affidavits from Band members stating that Marcus was adopted.

      While we acknowledge that there are inconsistencies and inaccuracies in the

record, in light of our “highly deferential” standard of review for agency decisions,

see Nw. Ecosystem All. v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1140 (9th Cir.

2007), we cannot say that Assistant Secretary Echo Hawk’s decision was arbitrary,

capricious, or an abuse of discretion, 5 U.S.C. § 706(2)(A).

      AFFIRMED.

      The Band’s motion for leave to file its amicus brief and the plaintiffs-

appellants’ motion for judicial notice are GRANTED.
