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6/18/2020 National Indian Law Library (NILL) Get Indian Law news delivered to your inbox EMAIL ADDRESS SIGN ME UP NATIVE AMERICAN RIGHTS FUND DONATE today NATIONAL INDIAN LAW LIBRARY INDIAN LAW BULLETINS TRIBAL LAW GATEWAY RESEARCH GUIDES RESEARCH HELP ABOUT NILL CATALOG INDIAN LAW BULLETINS | FEDERAL COURTS |WINNEMUCCA INDIAN COLONY V. UNITED STATES OF AMERICA, DEPARTMENT OF THE INTERIOR 2019 WL 320560 Only the Westlaw citation is currently available. United States District Court, D. Nevada. WINNEMUCCA INDIAN COLONY et al., Plaintiffs, v. UNITED STATES OF AMERICA ex rel. DEPARTMENT OF THE INTERIOR et al., Defendants. 3 11-cv-00622-RCJ-CBC | Filed 01/24/2019 ORDER ROBERT C. JONES United States District Judge This case arises out of the refusal of the Bureau of Indian Affairs (“BIA”) to recognize a tribal government of the Winnemucca Indian Colony. The Court ordered the BIA to recognize an interim chairman and ultimately acknowledged the results of tribal enrollment, elections, and litigation relating thereto. Plaintiffs Winnemucca Indian Colony and Judy Rojo have now asked the Court to award attorney’s fees under the Equal Access to Justice Act (“EAJA”). 28 U.S.C. § 2412. Plaintiffs are clearly the prevailing party. They requested injunctive and declaratory relief concerning the tribal leadership and received it. The Colony is eligible for an EAJA award if its net worth did not exceed $7,000,000 and if it had no more than 500 employees at the time of ling. Id. at § 2412(d)(2)(B)(ii). Plaintiffs have the burden of proof. Thomas v. Peterson, 841 F.2d 332, 337 (9th Cir. 1988). The Court accepts Judy Rojo’s af davit verifying the relevant facts, (Rojo Aff., ECF No. 305-1, at 1), and rejects the BIA’s argument that Rojo’s declaration is not valuable because she was not the chairperson at the time of ling (and therefore lacks personal knowledge of the Colony’s net worth at that time). There is no reason why such knowledge would be exclusive to the chairperson, and the BIA does not even suggest who the proper chairperson to inquire of would be. Rojo has attested to the relevant facts under oath, and the https://narf.org/nill/bulletins/federal/documents/winnemucca_v_us_doi.html 1/4

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Winnemucca v. United States

Judgment

Question Presented: Whether the election of the Council Chairman and the Bureau of Indian Affairs’s nonrecognition of the new government is reviewable by the courts.

Alleged Acts: On February 22, 2000 Chairman of the Council Glenn Wasson was murdered. Two members of the claimed the chairmanship, Wasson, and Bills. Bill sought to ascertain the seat as current Vice Chairman. Wasson alleged that Bills was ineligible because he was adopted and interfered with colonial mail. In July, the Western Nevada Agency of the Bureau of Indian Affairs declared the government dysfunctional and refused to recognize it. In December the Western Regional Office overruled the Western Nevada Agency, but the Bureau of Indian Affairs refused to recognize the government.

Procedural history: Bills filed for emergency injunctive relief in the Winnemucca Tribal Court. The court granted him relief and declared him to be acting Chairman. The Inter-Tribal Court of Appeals ordered that the case go to trial and that there was no legitimately formed government and there would need to be an election held. The parties submitted cross-appeals and agreed to have a panel of judges from the Sioux Nation hear the case. Any decisions from that court would not be appealable. In August of 2002, a Sioux Nation panel of judges ruled Wasson as the new Chairman. In May of 2007, the Inter-Tribal Court of Appeals dismissed all appeals of that decision stating that it did not have the jurisdiction to appeal the decision of the Sioux Nation panel. Winnemucca and Wasson sued the United States and Bureau of Indian Affairs seeking the court to that the United States must recognize the government and its members.

Summary: Temporary Restraining Order 8/31/2011: The court looked to an Eighth Circuit case (Goodface v. Grassrope) and determined that intra-tribal cases may produce federal jurisdiction under the Administrative Procedures Act if the litigants sue the Bureau of Indian Affairs to demand recognition under the tribal constitution. The Eighth Circuit determined that the Bureau of Indian Affairs abuses its discretion when it indefinitely refuses to acknowledge tribal councils while tribes sort out disputes internally. The court issues the temporary restraining order and that the Bureau of Indian Affairs acknowledge members of the Council. Equal Access to Justice Act 1/24/2019: The Bureau of Indian Affairs relied on the defense that the court lacked subject matter jurisdiction over the action based on the lack of precedent within the Ninth Circuit. The court found that the jurisdictional defense was substantially justified, but that the action of failing to recognize the Council was not substantially justified. The Bureau of Indian Affairs was not required to choose Wasson or Bills as Chairman, but the Bureau was required to make a decision instead of failing to recognize both parties. Therefore, the action was not substantially justified and the Bureau of Indian Affairs was required to pay Winnemucca’s attorney fees. Dismissing for Subject Matter Jurisdiction 6/15/2020: In dismissing the appeal the Ninth Circuit determined that intra-tribal dispute had not exhausted all administrative remedies. The Bureau was attempting to comply with the orders from the Interior Board of Indian Appeals. The court relied on this fact to determine that the Bureau of Indian Affairs decision was not final, and thus could not be reviewed by the court. Further, the Ninth Circuit asserted that further agency action would not necessarily be futile as the Bureau of Indian Affairs presented evidence that it was reconciling whether it needed to recognize the government and which candidate to recognize.

Conclusion: The Ninth Circuit dismissed the District Court’s holdings and remedies for lack of subject matter jurisdiction.

Legal Issue(s)

Civil Procedure
Disputing Results
Indigenous Persons

Applicable Law(s): Administrative Procedures Act

Region: Americas

Country: United States of America

Language of Decision

English

Court: Appellate Court

Election Type: General

Geolocation

Latitude: 40.97539103

Longitude: -117.7483904

: Geolocation

Primary Documents

Winnemaccu v. United States (District Court)
english
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Winnemaccu v. United States (Ninth Circuit)
english
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Winnemucca v. United States (TRO).pdf
english
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