2016 WL 6217057
Only the Westlaw citation is currently available.
United States District Court,
E.D. California.
California Valley Miwok Tribe, a federally-recognized Indian tribe, the General Council, Silvia Burley, Rashel Reznor; Anjelica Paulk; and Tristian Wallace, Plaintiffs,
Sally Jewel, in her official capacity as U.S. Secretary of Interior; Lawrence S. Roberts, in his official capacity as Acting Assistant Secretary of Interior-Indian Affairs; Michael Black, in his official capacity as Director of the Bureau of Indian Affairs, Defendants.
CIV. NO.: 2:16-01345 WBS CKD
Signed 10/24/2016

Attorneys and Law Firms
Manuel Corrales, Jr., Law Offices of Manuel Corrales, Jr., San Diego, CA, for Plaintiffs.
Jody Schwarz, US Department of Justice, Washington, DC, for Defendants.



*1 Plaintiffs Silvia Burley, Rashel Reznor, Anjelica Paulk, and Tristian Wallace brought this action against defendants Secretary of Interior Sally Jewell, Acting Assistant Secretary of Interior Lawrence Roberts, and Director of the Bureau of Indian Affairs (“BIA”) Michael Black for declaratory relief, injunctive relief, and due process violations arising out an administrative decision on the membership and leadership of the California Valley Miwok Tribe (“Tribe”). The matter is now before the court on plaintiffs’ motion to stay enforcement of the Assistant Secretary’s December 30, 2015, decision (“December 2015 Decision”).1 (Docket No. 10.)


I. Factual and Procedural Background

This action is part of a long-running leadership dispute over the Tribe between the Burley Faction––made up of Burley, Reznor, Paulk, and Wallace––and Yakima Dixie. See Cal. Valley Miwok Tribe v. United States, 424 F. Supp. 2d 197 (D.D.C. 2006) (hereinafter “Miwok I”); Cal. Valley Miwok Tribe v. United States, 515 F.3d 1262 (D.C. Cir. 2008) (hereinafter “Miwok II”); Cal. Valley Miwok Tribe v. Jewell, 5 F. Supp. 3d 86 (D.D.C. 2013) (hereinafter “Miwok III”). The Tribe is a federally recognized tribe.

In 1916, the United States acquired a parcel of land for the Tribe’s benefit. (Corrales Decl. Ex. 4 (“Dec. 2015 Decision”) at 2 (Docket No. 11).) In 1958, the California Rancheria Act terminated federal recognition of rancherias, and Mabel Dixie––the sole Miwok Indian resident on the land––acquired title to the land. (Id. at 3.)

Mabel Dixie’s son, Yakima Dixie, was the only tribal member living on the property in 1998. (Id. at 1-2.) The Burley Faction obtained his permission to enroll into the Tribe. (Id. at 2.) The BIA, Dixie, and Burley drafted a Resolution (“1998 Resolution”) stating that the Tribe consisted of at least Dixie and the Burley Faction and establishing a general council (“1998 General Council”). Miwok III, 5 F. Supp. 3d at 91. In 1999, a leadership dispute began between Dixie and Burley, and the BIA entered into a contract with Burley to provide funding for the Tribe’s organization. Id. Later, the BIA found Burley did not attempt to involve all tribal members, and it ceased recognizing Burley as the Tribe representative. Id. at 93. The California Gaming Control Commission, which provides funding to certain tribes, also suspended its payments to the Tribe and is currently holding the money in trust. Id. at 94.

In a 2005 hearing, the BIA refused to accept a constitution submitted by Burley that alleged that the Burley Faction were the only Tribe members because the constitution did not reflect the participation of the whole community. Id. at 93-94. This decision was upheld by the district court in Miwok I and the D.C. Circuit in Miwok II. Id. at 94.

*2 While Miwok II was pending, the BIA notified Dixie and Burley that it would move forward with facilitating the Tribe’s organization. Id. In December 2010, the Assistant Secretary determined that the tribal government was organized under the 1998 Resolution and General Council. Id. at 95. In August 2011, the Assistant Secretary issued a revised decision that reached the same conclusion. Id. He found (1) the citizenship of the Tribe consisted solely of Dixie and the Burley Faction and (2) the 1998 General Council was the Tribe’s government. Id. Dixie challenged the August 2011 Decision. (Dec. 2015 Decision at 2.)

Based on the record, the Miwok III court held the August 2011 Decision was arbitrary and capricious. (Id.) The court held that the Assistant Secretary ignored substantial evidence in the record and assumed conclusions without providing a factual basis. Miwok III, 5 F. Supp. 3d at 97-100. The court remanded the case to the Assistant Secretary. Id. at 100-01.

The Assistant Secretary issued his December 2015 Decision in response to the Miwok III remand. He held, based on the record and previous federal decisions, that the Tribe’s membership was not limited to five members and the 1998 General Council was not a tribal government. (Dec. 2015 Decision at 3-5.) Finally, the Assistant Secretary found Dixie’s 2013 Constitution did not establish a tribal government, but he allowed Dixie to submit additional evidence to a Regional Director in order to determine whether the 2013 Constitution was validly ratified. (Id. at 6.)

Plaintiffs challenged the December 2015 Decision and brought this suit against the federal defendants. Several potential Tribe members, including Dixie, intervened. (Docket No. 30.) Plaintiffs now move to stay the December 2015 Decision pending final resolution of this case. (Docket No. 10.)


II. Discussion

In order to obtain a preliminary injunction, the moving party must establish (1) he is likely to succeed on the merits, (2) he is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in his favor, and (4) an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20-21 (2008); Humane Soc. of the U.S. v. Gutierrez, 558 F.3d 896, 896 (9th Cir. 2009). When the United States is the non-moving party, the third and fourth factors merge. Nken v. Holder, 556 U.S. 418, 435 (2009). Injunctive relief is “an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam).

“[A] preliminary injunction will not be issued simply to prevent the possibility of some remote future injury.” Winter, 555 U.S. at 21. A plaintiff “must establish that irreparable harm is likely, not just possible, in order to obtain a preliminary injunction.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (emphasis in original) (citing Winter, 555 U.S. at 22). Plaintiffs must demonstrate the harm is both irreparable and imminent. Caribbean Marine Servs. Co., Inc. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988). “Speculative injury does not constitute irreparable injury sufficient to warrant granting a preliminary injunction.” Id.

Plaintiffs argue they will be irreparably harmed by the December 2015 Decision because the Regional Director “is poised to give the Tribe over to the Dixie Faction in the immediate future” by recognizing Dixie’s 2013 Constitution. Plaintiffs argue that once the 2013 Constitution is recognized, Dixie will request and obtain the $13 million the Gambling Control Commission is holding in trust for the Tribe pending resolution of the leadership dispute. (Pls.’ Mot. at 10 (Docket No. 10).)

*3 The possibility of injury to plaintiffs is speculative because it is uncertain whether the Regional Director will recognize Dixie’s 2013 Constitution in the first place. (See Dutschke Aff. ¶¶ 9-11 (Docket No. 34-1).) The December 2015 Decision only authorized the Regional Director to accept additional submissions from Dixie to determine whether the 2013 Constitution is valid. (Dec. 2015 Decision at 6.) Even if the Regional Director approves Dixie’s 2013 Constitution, this decision is subject to administrative appeal and would be stayed pending appeal. 25 C.F.R. §§ 2.1-.21 (describing the appeal procedures). Only then, after the Regional Director approved Dixie’s 2013 Constitution and the administrative appeals are exhausted, could Dixie petition the Gambling Control Commission for any money. Absent a showing that the money will immediately and certainly be released, any harm is speculative and not immediate.

For the foregoing reasons, because plaintiffs have not established that the Regional Director’s future decision regarding the 2013 Constitution and any subsequent issuance of tribal money is imminent or likely to occur, they have not met the irreparable harm prong of the preliminary injunction standard.

Plaintiffs have also failed to meet the merged third and fourth prongs of the preliminary injunction standard. First, “tribal self-government may be a matter of public interest.” Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1253 (10th Cir. 2001). Issuing an injunction preventing the BIA from determining the Tribe’s proper government undermines the public policy favoring the promotion of tribal self-governance.

Second, since plaintiffs have not shown irreparable injury, the balance of the equities cannot be in favor of plaintiffs over the United States or intervenor-defendants. Earth Island Inst. v. Carlton, Civ. No. 2:09-2020 FCD EFB, 2009 WL 9084754, at *28 (E.D. Cal. Aug. 20, 2009), aff’d 626 F.3d 462 (9th Cir. 2010) (“[W]here plaintiff has not made the requisite showing on the merits which, in turn, undermines the likelihood of irreparable injury, the balance of equities cannot be found in plaintiff’s favor.”). Preventing the implementation of the December 2015 Decision would also impair the interests of the United States and Tribe members in establishing legitimate government-to-government relations, and preventing the Regional Director from determining the validity of other potential tribal governments would prevent Tribe members from receiving the benefits of a duly-recognized government.

Because plaintiffs have failed to meet the second and third prongs for a preliminary injunction, the court thus does not need to address the likelihood of success on the merits. See Winter, 555 U.S. at 20-21 (holding a plaintiff must establish that all four prongs are met and irreparable harm is likely, not just possible). Accordingly, the court must deny plaintiffs’ motion.

IT IS THEREFORE ORDERED that plaintiffs’ motion to stay the Assistant Secretary’s December 2015 Decision pending final resolution of this case, considered as a motion for a preliminary injunction, be, and the same hereby is, DENIED.

Dated: October 24, 2016.
All Citations
Slip Copy, 2016 WL 6217057



Plaintiffs caption their motion as seeking an order staying the December 2015 Decision, but plaintiffs are actually seeking preliminary injunctive relief from the court to prevent the BIA from taking certain actions pending a decision on the merits. See Nken v. Holder, 556 U.S. 418, 428-29 (2009). The terminology does not change the court’s standard of review. Leiva-Perez v. Holder, 640 F.3d 962, 966 (9th Cir. 2011) (applying the four injunction factors to a stay request).