16-616No.

Supreme Court, U.bFILED

NOV - 3 2016OFFICE OF THE CLERK

IN THE SUPREME COURT OFTHE UNITED STATES

NISENAN TRIBE OF THE NEVADA CITYRANCHERIA, RICHARD JOHNSON, in his officialcapacity as Tribal Chairman and in his individual

capacity as the heir/legatee/successor to the distributeesPeter Johnson and Margaret Johnson,

Petitioners,VS.

S.M.R. JEWELL in her official capacity as Secretary ofthe Interior, KEVIN K. WASHBURN in his official

capacity as Assistant Secretary - Indian Affairs of theUnited States Department of Interior,

Respondents.

On Petition for Writ of Certiorari to the UnitedStates Court of Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Michael V. BradyMichael E. Vinding*

BRADY & VINDING400 Capitol Mall, Suite 2640

Sacramento, CA 95814(916) 446-3400

*Counsel of Record

E~LANK PAGE

QUESTIONS PRESENTED FOR REVIEW

1. Whether the Ninth Circuit Court ofAppeals’ nunc pro tunc ruling depriving Petitionersof substantive procedural rights was in error?

2. Whether the Ninth Circuit Court ofAppeals’ ruling on the statute of limitations was inerror?

TABLE OF CONTENTS

QUESTIONS PRESENTED ...................................i

TABLE OF CONTENTS .......................................ii

TABLE OF AUTHORITIES .................................iii

OPINIONS BELOW ..............................................1

JURISDICTION ....................................................1

CONSTITUTIONAL PROVISIONS ANDSTATUTES INVOLVED ..................................2

STATEMENT OF THE CASE ..............................2

REASONS WHY CERTIORARI SHOULDBE GRANTED .......................................................7

CONCLUSION ....................................................10

APPENDICESAppendix A- Opinion of the Ninth CircuitCourt of Appeals, dated May 25, 2016. la

Appendix B - Opinion of the District Court,

dated March 7, 2014 ......................................7aAppendix C - Denial of Review En Banc byNinth Circuit Court of Appeals, dated

August 10, 2016 ..........................................28a

Appendix D - Executive Order, dated May 6,1913 ..........................................................30aAppendix E - The California Rancheria Act ......31aAppendix F- Stipulation for Entry ofJudgment, dated July 1983 ...........................39a

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TABLE OF AUTHORITIES

.CasesMartin v. Henley

452 F.2d 295 (9th Cir. 1971) ............................5

Nisenan Tribe of the Nevada CityRancheria et al., v. Jewellet al., CaseNo. 5:10-cv-00270-JF ...........................3, 4, 6, 7

Tillie Hardwick, et al. v. United States, etal., Case No. 5:79-cv-01710-JF ............ 3, 4, 6, 7, 8, 9

United States v. Allen153 F.3d 1037 (9th Cir. 1988) ..........................5

United States v. Inocencio

328 F.3d 1207 (9th Cir. 2003) ......................5, 6

United States v. Sumner

226 F.3d 1005 (9th Cir. 2000) ..........................5

Statutes

Administrative Procedures Act, 5 U.S.C.sections 551 to 559 .........................................2

California Rancheria Termination Act,Pub. L. No. 85-671, 72 Stat. 619 (1958),amended by Pub. L. 88-419, 78 Stat. 390(1964) ...........................................................2, 3

28 U.S.C. section 2401 ........................................4

oo.III

OPINIONS BELOW

On May 25, 2016 the United States Court ofAppeals for the Ninth Circuit issued a six pageunpublished Memorandum decision affirming theDistrict Court’s order dismissing this action. SeeAppendix A for the Memorandum decision andAppendix B for the District Court’s March 7, 2014"Order Granting Plaintiffs’ Motion to Correct aClerical Mistake in Hardwick; Plaintiffs’ Motion toAugment the Pleadings in Nisenan; GrantingDefendant’s Motion for Judgment on the Pleadingsin Nisenan; and Dismissing the Nisenan action withPrejudice." A Petition for Rehearing En Banc wasdenied by the Ninth Circuit on August 10, 2016. SeeAppendix C.

JURISDICTION

The District Court had jurisdiction under 28U.S.C. section 1331. The District Court enteredJudgment on March 7, 2014 dismissing the Nisenanaction with prejudice. The Tribe filed a timely noticeof appeal on March 21, 2014. The Ninth CircuitCourt of Appeal had jurisdiction under 28 U.S.C.section 1291, and issued its Memorandum opinionaffirming the District Court’s dismissal on May 25,2016. A Petition for Rehearing En Banc was deniedby the Ninth Circuit on August 10, 2016. This Courthas jurisdiction to review on a writ of certiorari thejudgment in question pursuant to 28 U.S.C. section1254. The notification required by Rule 29.4(b) hasbeen made.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

California Rancheria Termination Act, Pub.L. No. 85-671, 72 Stat. 619 (1958), amended by Pub.L. 88-419, 78 Stat. 390 (1964) and theAdministrative Procedures Act, 5 U.S.C. sections551 to 559, are the statutes involved in this dispute.

STATEMENT OF THE CASE

Petitioners are a Native American IndianTribe that has existed in the vicinity of what is nowNevada City, California, since well before the GoldRush, and its Tribal Chairman, Richard Johnson. Inapproximately 1859, the Tribe moved to the parcelsubsequently identified as, and with, the NevadaCity Rancheria (hereinafter "Tribe" or "Nevada CityRancheria").

On May 6, 1913 President Woodrow Wilsonissued an Executive Order setting aside andreserving the parcel stating: "It is hereby orderedthe following described land in Nevada County,California, be and the same hereby is, withdrawnfrom entry sale or other disposition and set aside forthe Nevada or Colony tribe of Indians residingnear Nevada City," and the 75-acre parcel was solisted.1 The Tribe was recognized by the federalgovernment from 1913 to 1964 when it wasterminated pursuant to the California RancheriaTermination Act (Pub. L. No. 85-671, 72 Stat. 619

See Appendix D.

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(1958), amended by Pub. L. 88-419, 78 Stat. 390

(1964)).~

In 1979 the Nevada City Rancheria andothers sued the United States to regain federalrecognition in Tillie Hardwick, et al. v. UnitedStates, et al., Case No. 5:79-cv-01710-JF. TillieHardwick was a class action and the Tribe was aclass member. Most of the claims in Tillie Hardwickwere resolved in 1983 by way of a "Stipulation forEntry of Judgment," entered into by the UnitedStates and California Indian Legal Services("CILS") on behalf of the various rancherias.:~ Forunknown reasons the Nevada City Rancheria wasleft off the "Stipulation for Entry of Judgment."

In 2009 the Tribe filed a new action under theCalifornia Rancheria Termination Act entitledNisenan Tribe of the Nevada City Rancheria et al.,v. Jewell et al., Case No. 5:10-cv-00270-JF("Nisenan"). A short time later the Tribe discoveredthat it was still a party to Tillie Hardwick, havingnever been dismissed. The current appeal arises outof both Tillie Hardwick and Nisenan.

On March 7, 2014 the District Court for theNorthern District of California, the HonorableJeremy Fogle presiding, recognized that, through aclerical error committed in 1983, the Nevada City

See Appendix E.

See Appendix F.

Rancheria remained a party to Tillie Hardwick. Inresponse to a motion brought under FRCP 60(a) and60(b) the District Court dismissed the Tribe fromTillie Hardwick but made the dismissal effective,nunc pro tunc, as of 1983. The District Court thengranted the United States’ motion for judgment onthe pleadings in Nisenan and dismissed the actionwith prejudice on the basis that the action was timebarred. On March 25, 2016, a three judge panel ofNinth Circuit ruled that the Nevada CityRancheria’s action in pursuit of federal recognitionwas time barred under the AdministrativeProcedure Act’s ("APA’s") six year statute oflimitations. (See 28 U.S.C. § 2401.) On August 10,2016 Petitioners’ Petition for Rehearing En Bancwas denied.

The Ninth Circuit erred when it dismissedPlaintiffs from Tillie Hardwick on a nunc pro tunc.Under applicable law Plaintiffs’ dismissal fromTillie Hardwick can not be retroactive. Case law inthe Ninth Circuit and elsewhere is very clear thatwhile a district court enjoys great latitude when itcomes to correcting mistakes or omissions in therecord, a retroactive order, like the one here, maynot be used to record an event that never occurredor have the record reflect a fact that never existed.The Ninth Circuit erred when it affirmed theDistrict Court. The dismissal should have beeneffective as of March 7, 2014, by which time theNisenan case was already on file. "Nunc pro tuncsignifies now for then, or in other words, a thing isdone now, which shall have [the] same legal force

4

and effect as if done at [the] time when it ought tohave been done." (United States v. Allen, 153 F.3d1037, 1044 (9th Cir. 1988).) The power to amendnunc pro tunc is a limited one and may only be usedwhere necessary to correct a clear mistake andprevent injustice. (Martin v. Henley, 452 F.2d 295,299 (9th Cir. 1971).) The power to correct its ordersdoes not allow the court to alter the substance ofwhat actually transpired or to backdate events toserve some other purpose.

The Ninth Circuit relied upon two criminalcases, United States v. Sumner, 226 F.3d 1005 (9thCir. 2000) and United States v. Inocencio, 328 F.3d1207 (9th Cir. 2003) in affirming the DistrictCourt’s nunc pro tunc order. Neither case is onpoint. In Sumner there was no error and this Court,accordingly, affirmed denial of a request for anorder nunc pro tunc expunging a previousconviction. (Sumner at 1009.) Here, in contrast, allof the parties and the District Court agreed that anerror was made when the Nevada City Rancheriawas not included in the 1983 Stipulation for Entryof Judgment.

In Inocencio there was an error which thegovernment subsequently corrected through anorder nunc pro tunc revoking a person’snaturalization. Such an order was legally mandatedupon conviction of knowingly procuringnaturalization in violation of the law but the UnitedStates neglected to seek such an order until sixyears after the original conviction. (Inocencio at

5

1208-09.) As noted by the panel Opinion "... suchrevocation should have (but for a clerical error)followed automatically from the defendant’sconviction for naturalization fraud." (Citationomitted.) (Inocencio at 1208-11. Panel Opinion,p. 3.)

In Tillie Hardwick there was no "automatic"action that followed entry of the 1983 Stipulationfor Entry of Judgment. Instead, the District Courtretained jurisdiction and continued to decidematters subject to the Stipulation for Entry ofJudgment for the next thirty years.

Put simply, an order nunc pro tunc may notbe used to alter substantive rights, which is thepractical effect of the Ninth Circuit’s ruling.

The District Court also erred when it heldthat the Nisenan action was brought outside thestatute of limitations. The Nisenan action was filedthree years before Plaintiffs were dismissed fromTillie Hardwick. The statute of limitations wastolled beginning in 1979 when Tillie Hardwick wasoriginally filed. At that time the United Stateswaived both the statute of limitations and laches bychoosing not to raise them in its answer to TillieHardwick. The Tribe was one of the intendedbeneficiaries of that waiver until it was dismissedfrom Tillie Hardwick, which again, did not occuruntil March 7, 2014, by which time the Nisenanaction was on file. The United States may notrevoke its waiver of the defenses now.

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There is no prejudice to the United States inproviding Plaintiffs with their day in court.Plaintiffs’ case is, according to the United States, anAdministrative Procedures Act challenge where therecord has already been certified by the UnitedStates and then augmented by way of a motion byPlaintiffs that was granted by the District Court.While the passage of time is regrettable, it in noway prevents justice being done now.

REASONS WHY CERTIORARI SHOULD BEGRANTED

Certiorari should be granted because theDistrict Court and Ninth Circuit’s rulings in thismatter are such a departure from the otherproceedings in Tillie Hardwick as to requireexercise of this Court’s supervisory power.

In the 1983 Stipulation for Entry ofJudgment the trial court in Tillie Hardwick dividedthe Indian rancherias that were parties to theaction, including the Nevada City Rancheria, intothree groups. The first group consisted of thoserancherias whose distributees had received realproperty as the result of the implementation of theRancheria Act.-1 Federal recognition was restored tothose seventeen rancherias.’~ The second groupconsisted of those persons who received non-realproperty assets of other rancherias.(~ These

See Appendix F, Stipulation for Entry of Judgment, ¶l 2.

Id, at ¶l 3.

Id, at ¶l 14.

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claimants were dismissed without prejudice to theirclaims being re-filed in new actions.7 The thirdgroup consisted of rancherias and individuals whohad filed separate legal actions.8

The Nevada City Rancheria properlybelonged in the second grouping, i.e., the rancheriaswho were dismissed without prejudice to re-filing,but it was inadvertently left out of the StipulatedJudgment, and thus remained a party to TillieHardwick. Because the District Court consideredthe Tillie Hardwick case closed, the Tribe filed aMotion for Correction of Clerical Mistake pursuantto FRCP 60(a) and 60(b) asking that it be dismissedfrom Tillie Hardwick without prejudice effective asthe date the District Court issued its opinion, i.e.,some time in 2013 or 2014.9 The District Courtultimately agreed with the Tribe that theTribe had been inadvertently omitted from

~ Ultimately nearly all of these tribes would regain federalrecognition in the subsequently filed actions throughsettlement with the United States. See, for example, WiltonMiwole Rancheria v. Salazar, No. C-07-02681-JF (N.D. Cal.2009) (Stipulation and Order for Entry of Judgment). Otherswould be restored through the legislative process, i.e., theUnited Auburn Community by way of Public Law No. 103-434,codified at 25 U.S.C. § 1300(1); the Paskenta Band of NomlakiIndians by way of Public Law No. 103-454, codified at 25U.S.C. § 1300(m); and the Federated Indians of the GratonRancheria by way of Public Law No. 106-568, codified at 25U.S.C. § 1300(n).

Id. at ¶¶ 15-19.

The motion was filed on April 3, 2013.

the 1983 Stipulation but then granted the motion,under Rule 60(a), nunc pro tunc as of the date of the1983 Stipulation.

The District Court erred when it, sua sponte,made the dismissal retroactive to 1983 - a drasticresult that no party had requested. This actiondeprived the Nevada City Rancheria of the keybenefit of the Stipulated Judgment for othersimilarly situated rancherias - the opportunity toregain federal recognition. To place the Nevada CityRancheria into the same position as the othersimilarly situated rancherias in 1983, the DistrictCourt should have made the dismissal effective as ofMarch 7, 2014, which is what the Nevada CityRancheria requested, so that it could pursue, as didthe other rancherias dismissed from TillieHardwick, federal recognition, withoutinter-position by the United States of claims oflaches or the statute of limitations.

The District Court’s error in dismissing theNevada City Rancheria nunc pro tunc wasfundamental and went far beyond correcting aclerical mistake. Unlike all of the other rancheriasthat were parties to Tillie Hardwick, the NevadaCity Rancheria alone was denied the opportunity topursue federal recognition.

The question is what was intended at thetime of the 1983 Stipulated Judgment. There canbe little dispute that all signatories to theStipulated Judgment, and the Court, intended that

9

the rancherias in the classification that should haveincluded the Nevada City Rancheria would receivethe opportunity to pursue federal recognition in asubsequent lawsuit. That is why the dismissal waswithout prejudice to re-filing and why the UnitedStates waived the defenses of the statute oflimitations and laches. By making the dismissalretroactive to 1983 the District Court, and the NinthCircuit deprived the Nevada City Rancheria of thesubstantive procedural rights it was entitled to, andthat all other similarly situated rancherias received,under the Stipulated Judgment.

CONCLUSION

For the foregoing reasons, Petitioners requestthat this Court grant the petition for certiorari.

Dated: October 28, 2016Respectfully submitted,

Michael V. BradyMichael E. VindingBRADY & VINDING400 Capitol MallSuite 2640Sacramento, CA 95814

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APPENDIX A

FILEDMAY 25, 2016

MOLLY C. DWYER, CLERKU.S. COURT OF APPEALS

NOT FOR PUBLICATIONUNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

NISENAN TRIBE OF THENEVADA CITY RANCHERIA;et al.,

Plaintiffs - Appellants,

Vo

SALLY JEWELL, in her offi-cial capacity as Secretary ofthe Interior, et al.;

Defendants - Appellees.

:No. 14-15541

D.C. No. 5:10-cv-00270-JF

MEMORANDUM*

Appeal from the United States District Court for theNorthern District of California Jeremy D. Fogel,

District Judge, Presiding

Submitted May 13, 2016"*

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

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