--- Fed.Appx. ----, 2015 WL 1138391 (C.A.9 (Cal.))


United States Court of Appeals,

Ninth Circuit.

Ronald D. ALLEN, Jr.; et al., PlaintiffsAppellants,


Robert H. SMITH; et al., DefendantsAppellees.

No. 13-55552.

Argued and Submitted March 6, 2015.

Filed March 16, 2015.

Elizabeth P. Lin, The Lin Law Firm, APLC, Diamond Bar, CA, for

Ian Robert Barker, Sara Dutschke Setshwaelo, Paula Marie Yost, Esquire, Dentons
U.S. LLP, San Francisco, CA, for Defendants-Appellees.

Appeal from the United States District Court for the Southern District of
California, William Q. Hayes, District Judge, Presiding. D.C. No.

Before REINHARDT, N.R. SMITH, and HURWITZ, Circuit Judges.


FN* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

*1 Ronald D. Allen and twenty-six other former members of the Pala Band of
Mission Indians ("Appellants") appeal the district court's order dismissing this
case for want for subject matter jurisdiction. We affirm.

1. "Ordinarily, federal courts lack jurisdiction to consider an appeal from the
decision of an Indian Tribe to disenroll one of its members." Jeffredo v.
Macarro, 599 F.3d 913, 917 (9th Cir.2010). "A tribe's right to define its own
membership for tribal purposes has long been recognized as central to its
existence as an independent political community." Santa Clara Pueblo v. Martinez,

436 U.S. 49, 72 n. 32 (1978). Understanding this precedent, Appellants did not
challenge the Pala Band of Mission Indians' (the "Tribe's") disenrollment decision
directly, but instead filed suit against present and former members of the Tribe's
Executive Committee ("Appellees") in their individual capacities, asserting
violations of various federal statutes and common law principles. Appellants'
prayer for relief included (1) "a declaratory judgment that the [Appellees']
improper disenrollment of [Appellants] constitutes violations of their civil
rights"; (2) "a permanent injunction to invalidate [Appellees'] wrongful
disenrollment actions"; (3) "an order declaring the wrongful disenrollment of
[Appellants] by [Appellees] to be null and void;" (4) "an order requiring
[Appellees] to pay back the money and lost benefits that were withheld and/or
taken away from [Appellants] while they were wrongfully disenrolled"; (5) "an
order for compensatory damages against the [Appellees] for violations of
[Appellants'] rights in the amount appropriate to the proof adduced at trial"; and
(6) "an order for punitive damages against [Appellees] for causing, approving
and/or ratifying the disenrollment of the [Appellants], and for consequential loss
of money, property, and heritage."

"When [a] suit is brought only against state officials, a question arises as to
whether that suit is a suit against the State itself." Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 101 (1984). "The general rule is that relief
sought nominally against an officer is in fact against the sovereign if the decree
would operate against the latter." Hawaii v. Gordon, 373 U.S. 57, 58 (1963) (per
curiam). "In any suit against tribal officers, we must be sensitive to whether the
judgment sought would expend itself on the public treasury or domain, or interfere
with the public administration, or if the effect of the judgment would be to
restrain the sovereign from acting, or to compel it to act." Maxwell v. Cnty. of
San Diego, 708 F.3d 1075, 1088 (9th Cir.2013) (internal quotation marks and
alteration omitted). This relief sought by the Appellants clearly operates against
the Tribe. The requested relief would prevent the Tribe from disenrolling the
Appellants and compel it to reinstate their membership and tribal benefits. Even
the request for compensatory and punitive damages (to be paid by the Appellees,
not the Tribe) would interfere with the Tribe's public administration, because the
monetary damages are predicated on this court's determination that the
disenrollment of the Appellants was improper. Thus, we conclude that Appellants'
suit should be construed as a suit against the Tribe itself.

*2 Appellants concede that the Tribe is protected from suit by its sovereign
immunity. The Tribe's sovereign immunity also protects the named Appellees,
because they were acting in their official capacity when they disenrolled the
Appellants. See Imperial Granite Co., v. Pala Band of Mission Indians, 940 F.2d
1269, 1271 (9th Cir.1991) ("The votes individually have no legal effect; it is the
official action of the Band, following the votes, that caused [the] alleged
injury."), see also Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 691
n. 11 (1949).

Appellants also assert that the doctrine of Ex Parte Young, 209 U.S. 123
(1908), allows them to seek injunctive relief against the Appellees. However, Ex
Parte Young applies only to violations of federal law. See Salt River Project
Agric. Improvement & Power Dist. v. Lee, 672 F.3d 1176, 1181 (9th Cir.2012). On
appeal, Appellants argue a violation of federal law only on the basis that
Appellees were collaterally estopped from making a membership decision that runs
contrary to the Department of Interior's 1989 administrative decision. Even
assuming that the preclusive effect of an agency decision qualifies as federal law
under Ex Parte Young, Appellants' briefing does not demonstrate why the 1989
decision has preclusive effect against the Appellees. See Syverson v. Int'l Bus.
Machines Corp, 472 F.3d 1072, 1078 (9th Cir.2006).

2. Appellants argue that they should have been granted leave to amend their
complaint. "A district court does not err in denying leave to amend where the
amendment would be futile." Saul v. United States, 928 F.2d 829, 843 (9th
Cir.1991). Even if the court allowed Appellants to drop the request for injunctive
relief from their Complaint, the pleading would still require a federal court to
evaluate whether the Tribe's disenrollment was proper. Thus, "it is clear, upon de
novo review, that the complaint could not be saved by any amendment." Thinket Ink
Info. Res., Inc. v. Sun Microsystems, Inc., 368 F.3d 1053, 1061 (9th Cir.2004).