6/18/2020
National Indian Law Library (NILL)
BIA has adduced no contrary evidence. Nor does it matter what Rojo’s personal net worth was
at the time of ling. Under EAJA, it is the net worth of the real party in interest that matters,
and a member of an organization is only a real party in interest separate from the organization
for the purposes of EAJA if the member would be liable for attorney’s fees in the absence of an
award, regardless of whether the member receives a bene t from a favorable merits ruling.
Love v. Reilly, 924 F.2d 1492, 1494 (9th Cir. 1991). The record in this case shows that it is the
Colony itself that is liable for attorney’s fees, not Rojo personally. (Colony Resolution 2018-1008, ECF No. 305-1, at 5; Colony Mins., ECF No. 305-1, at 7).
The remaining question is whether the BIA’s position was “substantially justi ed.” Id. § 2412(d)(1)
(A). The BIA defended primarily on the basis that the Court lacked subject matter jurisdiction
over the action. The Court’s jurisdiction to require the BIA to recognize a tribal government
under the APA was unclear at the time. The Court relied upon Eighth Circuit precedent,
Goodface v. Grassrope, 708 F.2d 335 (8th Cir. 1983), there being none in this Circuit. The Ninth
Circuit’s opinion approving jurisdiction under the APA in cases like Goodface and the present
case issued after the BIA had lost on the issue here. Alto v. Black, 738 F.3d 1111, 1123–25 & n.9 (9th
Cir. 2013) (citing id. at 339). The BIA reiterated its position on jurisdiction in at least one brief
thereafter, but only to preserve the argument, and not in any way requiring Plaintiffs to expend
additional attorney labor. (Resp. 1–2, ECF No. 251).
Still, as Plaintiffs correctly note, the BIA’s position was only “substantially justi ed” for the
purposes of EAJA if both the BIA’s “original action” and its “defen[se]” of its original action in
court were substantially justi ed. United States v. Marolf, 277 F.3d 1156, 1161 (9th Cir. 2002).
Here, only the jurisdictional defense was substantially justi ed (until 2013). The underlying
refusal of the BIA to recognize a tribal government of a congressionally recognized tribe (and
the failure to attempt to sort out any dispute) for several years was not substantially justi ed.
Tribal leadership disputes can be complex and acrimonious, but so long as Congress continues
to recognize dependent tribal sovereigns within America’s borders, the appropriate executive
agency has a trust duty to those tribes, and taking sides in tribal leadership disputes, at least so
far as necessary to ensure diplomatic contact, is a price of that continuing policy that the
executive branch must pay. As noted, the BIA was only required to make a rational decision as
to which person(s) to recognize as the tribal representative(s). It was an unjusti ed abdication
of this duty to refuse to treat with the Winnemucca Indian Colony at all rather than choose
which person(s) to recognize.
Moreover, when ordered to select one or more representatives, the BIA then chose to
recognize two persons who were ercely opposed to one another (Wasson and Bills, the latter
of whom was accused by the former of having murdered the former’s father in order to assume
leadership of the Colony). This action was also unjusti ed and an abuse of discretion under the
APA, because choosing to recognize both Wasson and Bills was tantamount to making no
choice at all. No rational person would expect the two to act harmoniously. Upon being
ordered to choose again, the BIA again made an unjusti ed choice, choosing Bills, based not on
any supposed ability to better work with Bills (who apparently, unlike Wasson, resided not on
or near the Colony but in California) for the bene t of the Colony according to the Govrnment’s
trust duty, but based on the BIA’s interpretation of tribal law, which was an improper
consideration. In summary, the Court nds that the BIA’s underlying actions in this case were
not substantially justi ed.
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