Finally, because the court’s review of the Disenrollment
Order is limited to the administrative record before the BIA,
see Fence Creek Cattle Co. v. U.S. Forest Serv., 602 F.3d
1125, 1131 (9th Cir. 2010), the Tribe could not offer new
evidence in the judicial proceedings that would materially
affect the outcome of claims one through three.
The Band also points to a dispute over the interpretation
of tribal law as evidence that the United States cannot
adequately represent its interests. Specifically, the Tribe
maintains that the Disenrollment Order took immediate effect
upon issuance, whereas the district court concluded (and the
BIA initially argued) that the Altos would retain their
membership status until the Secretary of the Department of
Interior approves a revised membership roll for the Band, on
which the Altos’ names do not appear.10 But the ability of the
district court to afford complete relief on the Altos’ first three
claims does not turn on the resolution of this dispute.
If the Disenrollment Order is invalidated and the case
remanded to the agency, then the effective date of the order
will be of no consequence: the Altos would have remained
members of the Tribe throughout the pendency of this
dispute, and would be entitled to any attendant benefits as
provided in the tribe’s governing documents and applicable
federal law. If, on the other hand, the Disenrollment Order is
upheld, then questions concerning the date of the Altos’
disenrollment can be addressed by the appropriate body or
bodies, whether that be the Band alone or the Band with an
appeal to the BIA.
I am waiting for some clarification... STAY TUNED...and SHARE.
The full decision is HERE Alto 9th Circuit