FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALBERT P. ALTO; ANDRE E. ALTO;

ANTHONY ALTO; BRANDON ALTO;

CHRISTY ALTO; CHRISTOPHER J.

ALTO; DANIEL J. ALTO, JR.; DANIEL

J. ALTO, SR.; DOMINIQUE N. ALTO;

RAYMOND E. ALTO, SR.; RAYMOND

E. ALTO; RAYMOND J. ALTO, a

Representative for Ben Alto,

deceased, Marcus M. Alto, deceased,

Marcus R. Alto, deceased, David

Gomez, deceased, Susan Martinez,

deceased; ROBERT ALTO; RONALD J.

ALTO, SR.; VICTORIA (ALTO)

BALLEW; ANGELA (MARTINEZMCNEAL) BALLON; JUAN J. BALLON;

REBECCA (ALTO) BALLON; RUBY

BALLON; JANICE J. BANDERAS;

PETER BANDERAS; VICTOR

BANDERAS; DAVID A. BROKIEWICZ;

DIANA BROKIEWICZ; PATRICIA D.

BROKIEWICZ; MONICA (SEPEDA)

DIAZ; ANTHONY FORRESTER;

DUSTIN FORRESTER; JOHANNA

(ALTO) FORRESTER; SARAH

FORRESTER; ERNEST GOMEZ;

HENRIETTA (ALTO) GOMEZ;

KATHLEEN M. GOMEZ; HUMBERTO

R. GREEN; LYDIA (ALTO) GREEN;

PAUL ANTHONY GREEN; MARY JO

No. 12-56145

D.C. No.

3:11-cv-02276-

IEG-BLM

OPINION
2 ALTO V. BLACK

(ALTO) HURTADO; JUSTIN A. ISLAS;

CYNTHIA (SEPEDA) LEDESMA;

DESTINY C. LEDESMA; AMANDA M.

MINGES; ISABELLE M. SEPEDA; LUPE

SEPEDA; DEBORAH L. VARGAS;

DESIREE VARGAS; JEREMIAH

VARGAS; JESSIAH VARGAS; TERRY

WEIGHT; JASON ALTO; CAROL EDITH

CAVAZOS; AIMEE RENAE DIAZ;

DANIEL GOMEZ; LISA GOMEZ

HUNTOON; CHRISTINE MARTINEZ;

MARLENE M. MARTINEZ;

CASSANDRA SEPEDA; PAMELA J.

ALTO, as Guardian ad litem for

Marcus M. Green, a minor; PEDRO

BANDERAS, as Guardian ad litem for

Reina A. Banderas, a minor; DAWN

CASTILLO, as Guardian ad litem for

Alexis N. Ledesma, a minor, and

Jesse Ledesma, a minor; MARIA A.

PEREZ-ROLON, as Guardian ad litem

for Roland J. Alto, Jr., a minor;

MARTIN DIAZ, as Guardian ad litem

for Jessica Diaz, a minor, Toni L.

Diaz, a minor, and Jacob Diaz, a

minor; DONALD MARTINEZ, as

Guardian ad litem for Donelle

Martinez, a minor, Justine Martinez,

a minor, and Sabrina Martinez, a

minor,

Plaintiffs-Appellees,

v.
ALTO V. BLACK 3

MICHAEL BLACK, Director of the

Bureau of Indian Affairs of

Department of Interior; ROBERT

EBEN, Superintendent of the Bureau

of Indian Affairs, Southern

California Agency, of Department of

Interior; KEVIN K. WASHBURN,

Assistant Secretary of Indian Affairs

of Department of Interior; SALLY

JEWELL, Secretary of Department of

Interior,

Defendants-Appellees,

And

DOE, Defendants, 1 through 10,

inclusive,

Defendant,

SAN PASQUAL BAND OF MISSION

INDIANS,

Intervenor-Appellant.

Appeal from the United States District Court

for the Southern District of California

Irma E. Gonzalez, Chief District Judge, Presiding

Argued and Submitted

February 11, 2013—Pasadena, California

Filed December 26, 2013
4 ALTO V. BLACK

Before: Marsha S. Berzon and Paul J. Watford, Circuit

Judges, and James G. Carr, Senior District Judge.

*

Opinion by Judge Berzon

SUMMARY**

Tribal Affairs

In an appeal from the district court’s orders denying a

motion to dissolve a preliminary injunction and denying

motions to dismiss in an action concerning a dispute over

membership in an Indian tribe, the panel affirmed in part,

dismissed in part, and remanded.

The San Pasqual Band of Mission Indians’ governing

documents vested the United States Department of Interior,

Bureau of Indian Affairs, with ultimate authority over

membership. The panel held that the district court had

jurisdiction to enjoin preliminarily the enforcement of the

Bureau of Indian Affairs’ order upholding the Band’s

decision to disenroll descendants of Marcus Alto, Sr. from the

Band, and that the Band was not a required party, because the

claims underlying the preliminary injunction concern solely

the propriety of final agency action. Accordingly, the panel

affirmed the district court’s denial of the Band’s motion to

* The Honorable James G. Carr, Senior District Judge for the U.S.

District Court for the Northern District of Ohio, sitting by designation.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
ALTO V. BLACK 5

dismiss the claims on which the injunction rests and the

district court’s consequent refusal to dissolve the preliminary

injunction. The panel remanded to allow the district court to

clarify its order. Finally, the panel held that it lacked

jurisdiction to review on interlocutory appeal the Band’s

motion to dismiss the Altos’ other claims, on which the

district court expressly deferred ruling.

COUNSEL

Geoffrey D. Strommer (argued), Vernon L. Peterson, and

Timothy C. Seward, Hobbs, Straus, Dean & Walker, LLP,

Portland, Oregon, for Intervenor-Appellant.

Thor O. Emblem (argued) and Tracy L. Emblem, Law

Offices of Thor O. Emblem, Escondido, California, for

Plaintiffs-Appellees.

John L. Smeltzer (argued), Ignacia S. Moreno, Assistant

Attorney General, and Katherine J. Barton, Environment and

Natural Resources Division, United States Department of

Justice, Washington, D.C., for Federal Appellees.
6 ALTO V. BLACK

OPINION

BERZON, Circuit Judge:

Our question concerns the propriety of a preliminary

injunction issued with regard to a dispute over membership

in an Indian tribe. “‘[A] tribe’s right to define its own

membership for tribal purposes has long been recognized as

central to its existence as an independent political

community.’” Cahto Tribe of Laytonville Rancheria v.

Dutschke, 715 F.3d 1225, 1226 (9th Cir. 2013) (quoting Santa

Clara Pueblo v. Martinez, 436 U.S. 49, 72 n.32 (1978)). In

view of the importance of tribal membership decisions and as

part of the federal policy favoring tribal self-government,

matters of tribal enrollment are generally beyond federal

judicial scrutiny. See Lewis v. Norton, 424 F.3d 959, 961 (9th

Cir. 2005). Here, however, the tribe’s own governing

documents vest the United States Department of Interior,

Bureau of Indian Affairs (“BIA”), with ultimate authority

over membership decisions. The issues in this case center on

whether, and to what degree, this circumstance varies the

usual judicial “hands off” policy for tribal membership

decisions.

Specifically, we must decide whether the district court

had jurisdiction to enjoin preliminarily the enforcement of a

BIA order upholding the Band’s decision to disenroll

descendants of Marcus Alto, Sr. (“the Altos”), from the San

Pasqual Band of Mission Indians (“the Band” or “the Tribe”),

and whether such injunctive relief may issue in the Band’s

absence. We hold that the exercise of jurisdiction was proper,

and that the Band is not a required party for the adjudication

of the claims underlying the preliminary injunction, as they

concern solely the propriety of final agency action. 
ALTO V. BLACK 7

Accordingly, we affirm the district court’s denial of the

Band’s motions to dismiss the claims on which the injunction

rests and its consequent refusal to dissolve the preliminary

injunction. And we remand to allow the district court

formally to clarify its order in compliance with our

understanding of it, as described below. We lack jurisdiction

to review on interlocutory appeal the Band’s motion to

dismiss the Altos’ other claims, on which the district court

expressly deferred ruling.

I. FACTS & PROCEDURAL HISTORY

A. The Enrollment Dispute

The San Pasqual Band of Mission Indians is a federally

recognized Indian tribe whose ancestors occupied the San

Pasqual Valley, east of San Diego, California. Article III,

section 2 of the Band’s Constitution gives the Secretary of the

Interior final authority over tribal enrollment decisions. See

Const. &Bylaws of the San Pasqual Band of Mission Indians,

art. III, § 2 (“Const. of the Band”). The Constitution also

expressly incorporates federal regulations, adopted in 1960

and formerly codified at 25 C.F.R. §§ 48.1–48.15 (“the 1960

Regulations”), which addressed tribal enrollment criteria, the

process for completing an initial membership roll, the

procedures for keeping the membership roll current, and the

purposes for which the roll was to be used.

The 1960 Regulations have since been removed from the

Code of Federal Regulations,1but the reference to them

1

See Enrollment of Indians of the San Pasqual Band of Mission Indians

in California, 52 Fed. Reg. 31391-01 (Aug. 20, 1987) (noting the

redesignation ofthe 1960 Regulations from 25 C.F.R. Part 48 to 25 C.F.R.
8 ALTO V. BLACK

remains in the Tribe’s Constitution. The parties agree that the

substance of the otherwise defunct 1960 Regulations survive

as tribal law and govern enrollment decisions for the Band.

In 1987, Marcus Alto, Sr. and his descendants applied to

be added to the San Pasqual Band membership roll, on the

basis of Marcus Alto Sr.’s claimed linear descent from Jose

Alto and Maria Duro, both listed as members of the Band on

the 1910 Census Roll.2 Under 25 C.F.R. § 48.5(b) (1960),

“[d]escendants of Indians whose names appear as members

of the Band on the Census Roll” are eligible for enrollment,

provided they possess one-eighth or more degree of Indian

blood of the Band and are not affiliated with any other tribe. 

The Altos’ applications were adjudicated by the BIA’s

Superintendent of the Southern California Agency after Alto,

Sr.’s death in 1988, resulting, in 1991, in a finding that the

Altos were eligible for membership. The Band appealed the

enrollment decision to the BIA’s Assistant Secretary–Indian

Affairs, who affirmed.

So stood the Altos’ legal status until, in 2007, an

individual member of the Band formally challenged Marcus

Part 76); Enrollment of Indians; Removal of Regulations, 61 Fed. Reg.

27780-01 (June 3, 1996) (removing Part 76). All references to the federal

regulations incorporated into the Band’s Constitution are to the version

adopted in 1960.

2 Such membership disputes have been proliferating in recent years,

largely driven by the advent of Indian gaming, the revenues from which

are distributed among tribal members. See generally Suzianne D. PainterThorne, If You Build It, They Will Come: Preserving Tribal Sovereignty

in the Face of Indian Casinos and the New Premium on Tribal

Membership, 14 Lewis & Clark L. Rev. 311, 313 & nn.8–10, 320 (2010);

see also Alvarado v. Table Mountain Rancheria, 509 F.3d 1008, 1014–15

(9th Cir. 2007); Lewis, 424 F.3d at 960.
ALTO V. BLACK 9

Alto, Sr.’s enrollment before the Band’s Enrollment

Committee. The contention was that Alto, Sr. was the

adoptive son of Jose Alto and Maria Duro, not their

biological child, and therefore did not have the requisite

degree of Indian blood to be enrolled as a member of the

Band.3 The Committee voted to disenroll Alto, Sr.’s

descendants, and, after notifying the Altos, requested that the

BIA Regional Director approve its disenrollment decision on

the basis of the new evidence. See 25 C.F.R. § 48.5(b)

(1960).

When the Regional Director denied the request, the Band

appealed his decision to the Assistant Secretary–Indian

Affairs. The Assistant Secretary reversed the decision of the

Regional Director, issuing the 22-page 2011 Disenrollment

Order challenged in this suit. Making his own findings of

fact, the Assistant Secretary concluded that, applying the

Band’s membership criteria set forth in the 1960 Regulations,

the Altos’ names must be deleted from the Band’s

membership rolls because enrollment was based on

inaccurate information regarding Marcus Alto, Sr.’s blood

lineage.

The Altos thrice sought reconsideration of the Assistant

Secretary’s decision. After receiving no response, they filed

the instant suit.

3 The U.S. District Court for the Southern District of California

dismissed two previous challenges to the BIA’s approval of the Altos’

enrollment, citing various bars to litigation, including inter alia, standing,

statute of limitations, and compulsory joinder. See Order Granting

Defendant’sMotion to Dismiss Complaint, Caylor v. BIA, No. 03-cv-1859

(S.D. Cal. Apr. 22, 2004); Order GrantingDefendants’Motion toDismiss,

Atilano v. BIA, No. 05-cv-1134 (S.D. Cal. Dec. 1, 2005).
10 ALTO V. BLACK

B. The Federal Litigation

The Altos sued the Assistant Secretary and other federal

officials, all in their official capacities,4and moved

concurrently for a temporary restraining order and

preliminaryinjunction. The complaint did not name the Band

as a defendant.

The Altos’ initial pleadings describe four claims for

declaratory and injunctive relief.5 The first three claims seek

the court’s invalidation of the 2011 Disenrollment Order due

to various alleged errors in the agency’s decisionmaking. 

Specifically, the first claim asserts that the 1995 decision of

the Assistant Secretary, upholding Marcus Alto, Sr.’s

membership in the Band, precluded the Assistant Secretary’s

2011 Disenrollment Order under the doctrine of res judicata;

the second contends that the Assistant Secretary’s decision

violated the Altos’ rights to procedural due process; and the

third seeks reversal of the Disenrollment Order on the ground

that it was arbitrary and capricious agency action.

4 For purposes of this opinion, we refer to all of the federal defendants

collectively as “the BIA.”

5 The Alto descendants added a fifth claim for relief when they amended

their complaint in March 2012, after the issuance of the preliminary

injunction before us. This fifth claim seeks: (a) an order directing the BIA

and the Department of Interior to acknowledge that the Alto descendants

were never removed from the Band’s federally approved membership roll

and are therefore entitled to per capita payments under the Indian Gaming

Regulatory Act (“IGRA”), 25 U.S.C. §§ 2701–2721, and/or the Indian

Civil Rights Act (“ICRA”), 25 U.S.C. §§ 1301–1303; and (b) an order

directing the federal government to “exercise its fiduciary responsibility

and protect the Plaintiffs’ right to equal treatment in tribal membership

benefits.” The district court has not yet ruled on any aspect of this claim,

so we do not do so either.
ALTO V. BLACK 11

The Administrative Procedure Act (“APA”) provides a

right to judicial review of all “final agency action for which

there is no other adequate remedy in a court.” 5 U.S.C.

§ 704. Although only the third claim is explicitly

denominated as an APA claim in the complaint, the first three

claims all involve challenges to the propriety of the BIA’s

decision. All three may therefore be fairly characterized as

claims for judicial review of agency action under the APA,

5 U.S.C. §§ 701–706. See Skinner v. Switzer, 131 S. Ct.

1289, 1296 (2011) (“[U]nder the Federal Rules of Civil

Procedure, a complaint need not pin plaintiff’s claim for

relief to a precise legal theory.”); McCalden v. Cal. Library

Ass’n, 955 F.2d 1214, 1223 (9th Cir. 1990) (holding that a

plaintiff “is not required to state the statutory or constitutional

basis for his claim, only the facts underlying it”).

Alleging that the BIA has failed to fulfill its fiduciary

duty to protect their interests, the fourth “cause of action”

requests a preliminary injunction to “preserv[e] the [Altos’]

status quo” rights and benefits. As elaborated in their motion

for a preliminary injunction, the Altos sought a court order

prohibiting the removal of enrolled Alto descendants from the

Tribe’s membership rolls and compelling the BIA, pending

resolution of this suit, to order the Band to provide the Altos

with continued rights and benefits of tribal membership

(including access to health care, participation in tribal

governance decisions, and disbursements of tribal gaming

revenues).

Soon after the filing of the initial complaint, the Band

moved to appear specially as a necessary party and sought

dismissal of the suit under Federal Rule of Civil Procedure
12 ALTO V. BLACK

12(b)(7) for inability to join a required party under Rule 19.6

Joinder was barred, the Band maintained, because of tribal

sovereign immunity.

The district court declined to dismiss the action, reasoning

that complete relief could be afforded absent the Tribe. The

court then granted the Altos’ request for a preliminary

injunction, holding that the Altos had raised substantial

questions going to the merits of their res judicata and

arbitrary and capricious decisionmaking claims; that they

were likely to suffer irreparable harm due to the loss of access

to rights and benefits associated with tribal membership; and

that the balance of equities tipped sharply in their favor. The

preliminary injunction forbid the BIA from removing the

Altos from the Band’s membership roll or taking any further

action to implement the January 2011 Disenrollment Order

pending completion of the litigation. The injunction also

required the Assistant Secretary to issue interim orders

directing the Band to: allow the Altos access to voting rights,

meetings of the Band’s council, and Indian Health Service

(“IHS”); make per capita distributions to the Altos of gaming

revenue for the duration of the lawsuit; and escrow the

juvenile Altos’ per capita trust funds, “to the same extent as

was required during the pendency of the administrative

proceedings and before the issuance of the January 28, 2011

[disenrollment] order.”

The following month, the Assistant Secretary issued a

Memorandum Order and Report of Compliance with the

Preliminary Injunction. The Memorandum Order began by

6 Following stylistic amendments enacted in 2007, Federal Rule of Civil

Procedure 19 no longer refers to “indispensable” parties, but instead uses

the term “required party.” We do so as well.
ALTO V. BLACK 13

explaining that, in the Assistant Secretary’s view, he lacks

authority to “compel the Band to comply with all aspects of

the orders, exactly as phrased by the court.” Accordingly, the

Order “advise[d]” the Band that denying the Altos voting

rights “shall be recognized as a denial of [their] due process

rights, and will not be recognized by the Department.” It

“notif[ied]” IHS and the Band that the Altos are eligible for

health services and that the Assistant Secretary “expect[s]”

IHS and the Band to comply with regulations regarding the

provision of those services. And finally, the order “advised”

the Tribe that denying distribution of per capita payments to

members “would constitute a violation of the Band’s Revenue

Allocation Plan (RAP)” and “that while this order is in effect,

the Band may place all per capita distributions to the Alto

descendants (including minors) into an escrow account

created for this purpose. If the Alto descendants ultimately

prevail in this litigation, the Band must distribute the funds in

the escrow account to the Alto descendants, including

distribution to the minors’ trust fund as set forth in the Band’s

approved RAP.”

The Alto descendants, objecting to the Memorandum

Order as noncompliant with the preliminary injunction,

moved the district court to compel the BIA’s compliance with

the portion of the preliminary injunction that required the

agency to direct the Band to pay per capita gaming revenues

to the Altos for the duration of the lawsuit. The district court

denied the objections and motion to compel compliance, but

did not formally amend the injunction to reflect the BIA’s

concerns about the scope of the Secretary’s authority.

7

 

7

 We discuss the scope of the injunction in more detail in Part II.B.
14 ALTO V. BLACK

Once the preliminary injunction was in place, the Band

sought and was granted the right to intervene, without

waiving its sovereign immunity, for the limited purpose of

filing jurisdictional motions. The Band then moved to

dissolve the injunction for lack of jurisdiction. Its bases for

that request were, first, the assertion that the court’s

preliminary injunction order depended on jurisdictionally

impermissible interpretations of tribal law; and, second, that

the preliminary injunction order subjects the Band to

“substantial inequities,” by providing relief running against

the Band’s self-governance and property interests. In

addition, the Band renewed its earlier motion to dismiss the

suit under Rule 12(b)(7), for inability to join a Rule 19-

required party, and under Rule 12(b)(1), for lack of subject

matter jurisdiction.

The BIA objected to the Band’s motion in part, arguing

that the Band is not a required party for the Altos’ first three

causes of action. The agency agreed with the Band, however,

that the court lacked subject matter jurisdiction over the

fourth and fifth causes of action.

Citing the lack of any indication by the BIA that “it could

not make efforts to preserve the status quo pending resolution

of the merits of [the Altos’] claims under the APA,” the

district court refused to dissolve the preliminary injunction.

The court proceeded, for purposes of ruling on the motion to

dismiss, to bifurcate the Altos’ first three causes of action

from the last two. Reiterating its earlier decision denying the

Tribe’s motions to dismiss the first three claims on federal

question or Rule 19 grounds, the court delayed adjudication

of the motions to dismiss with regard to claims four and five,

citing: (1) uncertainties regarding the Altos’ ability to

demonstrate subject matter jurisdiction over their fourth and
ALTO V. BLACK 15

fifth claims for relief; (2) skepticism about the court’s ability

to proceed to the merits of those claims in the Band’s

absence; and (3) the possibility that a decision upholding the

Disenrollment Order would moot the fourth and fifth claims.

The Tribe timely appealed both the refusal to dissolve the

injunction and the denial of its motions to dismiss.

II. DISCUSSION

A. The Present Challenge to the Preliminary Injunction

We begin by clarifying the scope of the challenge before

us. The issuance of the preliminary injunction was not

appealed by either original party to the suit. And neither the

Altos nor the enjoined entity, the BIA, ask this court to

dissolve the injunction or modify its scope. Rather, the Band,

the intervenor in this action for limited purposes, appeals

from the district court’s refusal to dissolve the injunction and

to dismiss the case.

We have jurisdiction to review a district court’s refusal to

dissolve a preliminary injunction. See 28 U.S.C.

§ 1292(a)(1). Typically, “[a] party seeking modification or

dissolution of an injunction bears the burden of establishing

that a significant change in facts or law warrants revision or

dissolution of the injunction.” Sharp v. Weston, 233 F.3d

1166, 1170 (9th Cir. 2000). That requirement presumes that

the moving party could have appealed the grant of the

injunction but chose not to do so, and thus that a subsequent

challenge to the injunctive relief must rest on grounds that

could not have been raised before. See Transgo, Inc. v. Ajac

Transmission Parts Corp., 911 F.2d 363, 365 (9th Cir. 1990).
16 ALTO V. BLACK

Here, however, where the Band was permitted to

intervene only after the issuance of the injunction and only

for the limited purpose of filing jurisdictional motions, the

usual limitation on motions to dissolve injunctions is

inapposite. The Band, as a non-party, had no prior

opportunity to challenge the grant of the injunction. And it

does not challenge the substance of the district court’s

analysis as to whether injunctive relief was warranted. 

Instead, consistent with the limited purposes for which it was

permitted to intervene, the Band sought dissolution of the

injunction on “jurisdictional” grounds.

On this appeal, therefore, we do not consider “the

propriety of the underlying order.” Sharp, 233 F.3d at

1169–70. To prevail on the issues that the Band can and does

raise, the Band must show that the district court erred by

applying an erroneous legal standard in determining either (1)

that it had subject matter jurisdiction to adjudicate the Altos’

claims and grant preliminary injunctive relief or (2) that it

was proper to proceed in the Band’s absence. See Credit

Suisse First Bos. Corp. v. Grunwald, 400 F.3d 1119, 1126 n.7

(9th Cir. 2005).

B. Scope and Substance of the Claims and the Injunctive

Relief

To review those issues, we must first clarify the scope of

the injunctive relief granted and the claims on which it rested.

In assessing whether injunctive relief was warranted, the

district court analyzed the Altos’ likelihood of success only

with respect to their first three causes of action, based on res

judicata, due process, and arbitrary and capricious agency

action. The court did not discuss the merits of the fourth
ALTO V. BLACK 17

claim, related to the BIA’s fiduciary duty and failure to act to

protect the Altos’ access to tribal rights and benefits. The

harm alleged in the Altos first three claims stemmed from

purported errors in agency decisionmaking.

Typically, a preliminary injunction issued regarding APA

review of agency decisionmaking preserves the court’s

jurisdiction to grant complete relief by simply suspending the

implementation of challenged agency action pending full

court review. See, e.g., City of San Diego v. Whitman,

242 F.3d 1097, 1098 (9th Cir. 2001). The original injunction

issued in this case tracked the sort of preliminary relief

ordinarily available in APA cases insofar as it “restrained and

enjoined” the BIA, “for the duration of this lawsuit from

removing [the Altos] from the San Pasqual Tribe’s

membership roll and from taking any further action to

implement the [challenged Disenrollment Order.]”

The remainder of the original preliminary injunction,

paragraphs two through five, went further. It compelled the

BIA to take action to effect temporary restoration of the

Altos’ access to tribal rights and benefits.

Recognizing that the breadth of the district court’s order

was questionable, the BIA issued a Memorandum Order and

Report of Compliance that, in operative effect, treats the

district court injunction as only suspending the

implementation of the Disenrollment Order pending plenary

review of the agency’s action. While it addresses the impact

of a suspension of the Disenrollment Order on the Altos’

rights and benefits vis-a-vis the Band, the Memorandum

Order—except in one respect we discuss later—did not

command the Tribe to take any particular steps pertaining to

the Altos’ membership status. The legal obligations to which
18 ALTO V. BLACK

the Memorandum Order refers stem not from the coercive

power of the court or from the BIA’s authority over the Band,

but rather from separate federal laws and regulations, as well

as from tribal governing documents. See, e.g., 42 C.F.R.

Part 136 (establishing general principles and program

requirements for the Indian Health Service); Indian Civil

Rights Act (“ICRA”), 25 U.S.C. §§ 1301–03; Indian Gaming

Regulatory Act (“IGRA”), 25 U.S.C. §§ 2701–2721. Thus,

although the Memorandum Order states that the Secretary is

advising the Band “in compliance with the court’s order,”

judicial authority is not the operative force behind any weight

the Secretary’s words may carry.

Although asked to do so after the Secretary issued his

Memorandum Order, the district court did not compel the

BIA to comply with the injunction as originally issued. By

denying the Altos’ request to order the Secretary to provide

relief beyond that reflected in the Memorandum Order, the

court acceded to the BIA’s limited implementation of the

preliminary injunction. In practical effect, the district court’s

acquiescence in the Secretary’s partial compliance with the

injunction clarified the scope of the court’s order. 

Accordingly, the operative injunction, and the one subject to

our review, encompasses only the suspension of the

implementation of the Disenrollment Order, which according

to the BIA’s Memorandum Order, will have certain impacts

on the Altos and the Band.

The Band contends that even the suspension of the

Disenrollment Order, as supplemented by the Memorandum

Order, is beyond the court’s jurisdiction, because the

Memorandum Order requires the Band to treat the Altos as

members and to provide them with the attendant rights and

benefits. The text of most of the Memorandum Order,
ALTO V. BLACK 19

however, does not substantiate those concerns. Disapproving

the portions of the Memorandum Order that “advise” and

“notify” the Band of the implications of temporarily restoring

the Altos’ membership would have no effect on the Band’s

legal rights and obligations vis-a-vis the Altos during the

pendency of this suit. At this juncture, we therefore need not,

and do not, decide some difficult questions posed by the

injunction in its original formulation.

The one exception to the limited nature of the

Memorandum Order is the portion implementing the

injunction that states: “If the Alto descendants ultimately

prevail in this litigation, the Band must distribute the funds in

the escrow account [if one is created for the purpose of

holding all per capita gaming revenues distributed to the

Altos while this suit is pending] to the Alto descendants,

including distribution to the minors’ trust fund as set forth in

the Band’s approved RAP.” The injunction as a whole,

however, provides onlypreliminary relief, while the language

just quoted specifies what is to happen not now, but “[i]f the

Alto descendants ultimately prevail.” This coercive directive

therefore does not simply implement the court’s order

preserving the status quo pending its review of agency action.

We shall remand for the purpose of allowing the district

court formally to clarify the original injunction to conform to

the understanding of the now-operative injunction we have

just articulated—namely, as suspending the Disenrollment

Order while this suit is pending and as directing the BIA to

implement that suspension by advising the parties of its

impact. The part of the Memorandum Order mandating

distribution of escrowed funds if the Altos ultimately prevail

goes beyond that limited role, and so should not be approved

in the revised injunction.
20 ALTO V. BLACK

The Band’s jurisdictional arguments, if accepted, would

invalidate the injunction even as so clarified. We therefore

do not await the clarification but address the Band’s

arguments now.

C. Subject Matter Jurisdiction

The Band moved both to dissolve the preliminary

injunction and to dismiss claims one through three on the

ground that this case presents no federal question. Its

argument is that as the BIA’s disenrollment decision turned

solely on questions of tribal law and governance, there is no

jurisdiction under the APA. We disagree.

1. The Motions to Dissolve and to Dismiss

As we have stated, we have jurisdiction to review the

district court’s refusal to dissolve the injunction. 28 U.S.C.

§ 1292(a)(1). We typically would not have jurisdiction on

interlocutory appeal to review the district court’s concurrent

ruling on the Band’s motion to dismiss under Rule 12(b)(1). 

Here, however, the basis asserted for dissolving the injunction

is lack of subject matter jurisdiction, the same issue that

underlies the Band’s appeal of the denial of its motion to

dismiss claims one through three for failure to state a federal

question. See Meredith v. Oregon, 321 F.3d 807, 814 (9th

Cir. 2003). So our “resolution of the issue properly raised on

interlocutory appeal”—dissolution of the injunction—

“necessarily resolves” the proper resolution of the motion to

dismiss. Id. (internal quotation marks omitted). As the two

issues both turn on the same jurisdictional analysis, review of

the denial of the motion to dismiss claims one through three

for lack of subject matter jurisdiction is properly “pendent”

to our review of the dissolution motion. Id.
ALTO V. BLACK 21

“We review the district court’s ruling on subject matter

jurisdiction de novo.” Chilkat Indian Vill. v. Johnson,

870 F.2d 1469, 1470–71 (9th Cir. 1989).

2. The Propriety of Agency Action is a Federal

Question

The central issue in this suit concerns tribal membership

and its attendant rights and privileges. Federal courts

generally may not interfere with tribal enrollment decisions,

“[g]iven the often vast gulf between tribal traditions and those

with which federal courts are more intimately familiar . . . .” 

Santa Clara Pueblo, 436 U.S. at 72 n.32 (citations omitted). 

Because “[o]rdinarily[] federal courts lack jurisdiction to

consider an appeal from the decision of an Indian Tribe to

disenroll one of its members,” Jeffredo v. Macarro, 599 F.3d

913, 917 (9th Cir. 2010), we have regularly declined to

exercise jurisdiction over cases in which individuals are

seeking an order mandating BIA involvement in tribal

enrollment decisions.

Lewis v. Norton, for example, rejected the plaintiffs’

effort to “do an end run around tribal immunity” by asking

the court to order the Department of Interior to decide in the

first instance whether they should be enrolled as members

and afforded a share in tribal gaming revenues. 424 F.3d at

963. To adjudicate such an action would require the court to

evaluate the merits of the plaintiffs’ claim to membership

under tribal law—in effect, to review the tribe’s own

determination and intervene in its actions vis-a-vis its own

members. See Alvarado, 509 F.3d at 1016.

Here, however, the Altos do not ask the federal court to

decide ab initio whether they meet the Band’s enrollment
22 ALTO V. BLACK

criteria. Rather, they seek review under the APA’s arbitrary

and capricious standard of the Assistant Secretary’s action in

issuing the 2011 Disenrollment Order. And that action was

triggered by the Band’s own request, not that of the putative

tribal members.

We have previouslyassumed, without expresslydeciding,

that we have jurisdiction to review agency action under the

APA even when the agency applies tribal law. For example,

Moapa Band of Paiute Indians v. U.S. Department of

Interior, 747 F.2d 563, 565–66 (9th Cir. 1984), applied APA

standards to review the Secretary of the Interior’s rescission

of a tribal ordinance, pursuant to authority granted to him by

the tribal constitution, without discussing federal question

jurisdiction. Similarly, Baciarelli v. Morton, 481 F.2d 610,

612 (9th Cir. 1973) (per curiam), applied APA standards to

review the Secretary of the Interior’s reinstatement of a tribal

council’s enrollment decision,without discussing jurisdiction. 

These cases are not dispositive, because the present

jurisdictional issue was not squarelyaddressed. See BurbankGlendale-Pasadena Airport Auth. v. City of Burbank,

136 F.3d 1360, 1363 (9th Cir. 1998). But the cases are

persuasive authority that the exercise of jurisdiction here is

proper.

We said a bit more on the subject recently in Cahto Tribe: 

“We have jurisdiction to review final agency action, 5 U.S.C.

§ 704, and the BIA’s 2009 decision was final for the

Department of the Interior.” 715 F.3d at 1228 (citation

omitted).8 Although Cahto Tribe asserted this court’s

8 The issue in Cahto Tribe was whether the BIA had jurisdiction, under

the tribe’s governing documents, to review an individual’s appeal from a

tribal disenrollment decision. 715 F.3d at 1226–29. The tribe in that case
ALTO V. BLACK 23

jurisdiction to review, under the APA, the BIA action

challenged in that suit, it did not explain why that jurisdiction

can extend to BIA action that rests on tribal law.9 We take

the opportunity to do so now.

contended that its Articles of Association do not provide for an appeal of

a disenrollment decision to the BIA. We agreed. The Band has made no

such contention here—unsurprisingly, as it was the party that appealed to

the BIA. As the BIA’s authority to review the disenrollment decision of

the Band’s membership committee is not in dispute, we agree with the

parties that the BIA had jurisdiction to issue the challenged Disenrollment

Order.

9 Consistent with Moapa Band, Baciarelli, and Cahto Tribe, other

circuits have adjudicated APA causes of action in cases concerning Indian

affairs. The Eighth Circuit, for example, asserted jurisdiction over the

BIA’s decisions whether to recognize tribal governing bodies following

tribal elections, even though the recognition decision ultimately turns on

tribal law. See Runs After v. United States, 766 F.2d 347, 351 (8th Cir.

1985); Goodface v. Grassrope, 708 F.2d 335, 339 (8th Cir. 1983). The

court was careful, however, to limit the scope of federal jurisdiction to the

propriety of the BIA’s action under the APA, not the soundness of the

BIA’s decision under tribal law: “[The] resolution of such disputes

involving questions of interpretation of the tribal constitution and tribal

law is not within the jurisdiction of the district court.” Runs After,

766 F.2d at 352 (citing Grassrope, 708 F.2d at 338–39 & n.4).

The Second Circuit similarly implied that federal jurisdiction lies

where plaintiffs seek review of an agency decision concerning Indian

affairs. Shenandoah v. U.S. Department of Interior, 159 F.3d 708 (2d Cir.

1998), explained that a federal court lacks jurisdiction over an issue of

tribal law “in the absence of an initial determination by the [BIA],”

implying that where there is such an agency determination, even an issue

that involves the application of tribal law may properly come before a

federal court. Id. at 712 (emphasis added) (citing Grassrope and Runs

After). And the Federal Circuit has noted that, according to the Interior

Board of Indian Appeals, “[d]ecisions of the BIA made at the level of

Assistant Secretary or above, are apparently reviewable in district court.” 

Kaw Nation v. Norton, 405 F.3d 1317, 1325 n.10 (Fed. Cir. 2005).
24 ALTO V. BLACK

Here, the Assistant Secretary issued the challenged

Disenrollment Order in his official capacity as a manager of

Indian affairs under 25 U.S.C. § 2, and in response to the

Band’s appeal. Current federal regulations, codified at 25

C.F.R. §§ 62.1–62.12, provide procedures for “filing and

processing of appeals from adverse enrollment actions by

[BIA] officials,” § 62.2, such as the Regional Director’s

decision the Band appealed here, and expressly permit tribal

committees to file appeals, see § 62.4(b), as the Band’s

committee did here. Those regulations make clear that the

challenged Disenrollment Order is “final agency action”

within the meaning of the APA, 5 U.S.C. § 704. See § 62.11.

Moreover, the Assistant Secretary’s resolution of the

enrollment dispute was consistent with the authority vested in

him by Article III, section 2 of the Band’s Constitution. The

1960 Regulations specifically required the Secretary to

approve the deletion of individuals members’ names from the

Band’s roll, see 25 C.F.R. § 48.14(d) (1960). So the Band’s

current Constitution, which expressly incorporates those

regulations, does so as well. And, by reason of that same

incorporation, the Secretary’s decision is not “committed to

agency discretion by law,” 5 U.S.C. § 701(a)(2). Rather, the

Secretary must apply the tribe’s own enrollment criteria, and

is required to identify the information relied upon in reaching

his decision. See 25 C.F.R. §§ 62.10–62.11.

The APA provides that “[a] person suffering legal wrong

because of agency action, or adversely affected or aggrieved

by agency action within the meaning of a relevant statute, is

entitled to judicial review thereof.” Darby v. Cisneros,

509 U.S. 137, 146 (1993) (quoting 5 U.S.C. § 702). APA

§ 704, in turn, specifically provides for judicial review of

final agency action “for which there is no other adequate
ALTO V. BLACK 25

remedy in a court.” 5 U.S.C. § 704. As these provisions

reflect, Congress’s understanding in passing the APA was

that “judicial review should be widely available to challenge

the actions of federal administrative officials.” Califano v.

Sanders, 430 U.S. 99, 104 (1977). The APA therefore creates

a “strong presumption that Congress intends judicial review

of administrative action.” Bowen v. Mich. Acad. of Family

Physicians, 476 U.S. 667, 670 (1986); see also INS v. St. Cyr,

533 U.S. 289, 298 (2001).

That the substantive law to be applied in this case is tribal

law does not affect our jurisdiction over an APA challenge to

the BIA’s decision. “[I]t is common ground that if review is

proper under the APA, the District Court ha[s] jurisdiction

under 28 USC § 1331.” Bowen v. Massachusetts, 487 U.S.

879, 891 n.16 (1988); see also Sharkey v. Quarantillo,

541 F.3d 75, 83–84 (2d Cir. 2008) (holding that § 1331

confers jurisdiction over a suit that “arises under” a “right of

action” created by the APA); Runs After, 766 F.2d at 351

(citing Grassrope, 708 F.2d at 338). The federal question for

§ 1331 purposes is whether the BIA violated the APA; that it

is claimed to have done so in a case involving application of

tribal law does not matter, any more than it would matter to

§ 1331 jurisdiction over an APA case involving an issue of

state law.

South Delta Water Agency v. U.S. Department of Interior,

Bureau of Reclamation, 767 F.2d 531 (9th Cir. 1985), for

example, affirmed § 1331 jurisdiction to review, under the

APA, the federal government’s operation of a water project

in a manner that allegedly violates state law. That case

reasoned that “[s]tate law . . . adequately constrains the

federal defendants’ rights by providing ‘law to be applied,’”

under 5 U.S.C. § 706, so “therefore, review is proper under
26 ALTO V. BLACK

the APA.” Id. at 539. Similarly, here, the Band’s

Constitution, and the 1960 Regulations incorporated therein,

constrain the Secretary’s actions by providing the “law to be

applied,” such that review under the APA is proper.

The Altos’ first three causes of action all concern the

manner in which the Assistant Secretary exercised his

authority to review the Band’s enrollment determination. 

Claims one through three therefore both seek review of final

agency action and raise a federal question under the APA,

over which we have jurisdiction.

In sum, we have jurisdiction over the Altos’ challenges to

the BIA’s determination of the tribal enrollment decision. 

The district court properly declined to dissolve the injunction

and to dismiss the case on subject matter jurisdiction grounds.

D. Rule 19 Required Party Analysis

We turn next to the Band’s alternative contention—that

it is a required party with regard to claims one, two, and

three, so that preliminary injunctive relief as to those claims

could not be granted in its absence.

Joinder is not itself jurisdictional. See Wilbur v. Locke,

423 F.3d 1101, 1106–07 (9th Cir. 2005), abrogated on other

grounds by Levin v. Commerce Energy, Inc., 130 S. Ct. 2323

(2010). In this case, however, joinder of the Band, if

required, would in turn raise sovereign immunity questions

regarding the propriety of any adjudication of the Altos’

claims. If the Band is a required party for the causes of action

underlying the injunction, then the propriety of the relief

granted by the district court depends, first, on whether the

Band’s joinder would be precluded by tribal sovereign
ALTO V. BLACK 27

immunity, which the Band has invoked, see, e.g., Maxwell v.

Cnty. of San Diego, 708 F.3d 1075, 1086 (9th Cir. 2013); and

second, if so, whether the court can “in equity and good

conscience” proceed to adjudicate those claims without the

Band. See Fed. R. Civ. P. 19(b); see also Wilbur, 423 F.3d at

1114–15 (applying the Rule 19(b) factors to a sovereign

tribe).

Moreover, the Rule 19 inquiry would, if resolved in the

Band’s favor, result in dissolving the injunction. There

would then be no likelihood of success on the merits. Yet,

the Band had no opportunity fully to litigate that issue until

permitted to intervene for limited purposes. Thus embedded

in the Rule 19 issue in this case is a quasi-jurisdictional

issue—sovereign immunity—as to which the affected party

would ordinarily be entitled to appeal denial of a motion to

dismiss. See Terenkian v. Republic of Iraq, 694 F.3d 1122,

1131 (9th Cir. 2012) (citing Phaneuf v. Republic of Indon.,

106 F.3d 302, 304 (9th Cir. 1997)); Doe v. Holy See, 557 F.3d

1066, 1074 (9th Cir. 2009) (per curiam). Review of the

Band’s Rule 19 arguments as they pertain to the claims

covered by the preliminary injunction is therefore properly

before us.

We review the district court’s denial of the Band’s Rule

19 motion for abuse of discretion, but review the legal

conclusions underlying that determination de novo. Salt

River Project Agric. Improvement & Power Dist. v. Lee,

672 F.3d 1176, 1179 (9th Cir. 2012); see also Disabled

Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861,

879 (9th Cir. 2004).

The first step in compulsory joinder analysis is to

determine whether the Band is a required party to the action. 
28 ALTO V. BLACK

Joinder of the Band is “required” if either: (1) the court

cannot accord “complete relief among existing parties” in the

Band’s absence, or (2) proceeding with the suit in its absence

will “impair or impede” the Band’s ability to protect a

claimed legal interest relating to the subject of the action, or

“leave an existing party subject to a substantial risk of

incurring double, multiple, or otherwise inconsistent

obligations because of the interest.” Fed. R. Civ. P.

19(a)(1)(A)–(B); Shermoen v. United States, 982 F.2d 1312,

1317 (9th Cir. 1992). We examine each factor in turn. Only

if we determine that the Band is a required party do we

proceed to the second Rule 19 inquiry: whether joinder is

feasible, or is barred by sovereign immunity. Finally, only if

joinder is impossible must we determine whether, in “equity

and good conscience,” the suit should be dismissed. See Fed.

R. Civ. P. 19(a)–(b); EEOC v. Peabody W. Coal Co.,

400 F.3d 774, 779–80 (9th Cir. 2005); Dawavendewa v. Salt

River Project Agric. Improvement & Power Dist., 276 F.3d

1150, 1155 (9th Cir. 2002) (quoting Confederated Tribes of

Chehalis Indian Reservation v. Lujan, 928 F.2d 1496, 1498

(9th Cir. 1991)); Makah Indian Tribe v. Verity, 910 F.2d 555,

558 (9th Cir. 1990). This determination is necessarily factand circumstance-specific. Confederated Tribes, 928 F.2d at

1498.

As will appear, we resolve the Rule 19 question at step

one.

1. Complete Relief

Complete relief “is concerned with consummate rather

than partial or hollow relief as to those already parties, and

with precluding multiple lawsuits on the same cause of

action.” Disabled Rights, 375 F.3d at 879 (citations and
ALTO V. BLACK 29

internal quotation marks omitted). To be “complete,” relief

must be “meaningful relief as between the parties.” Id.

(emphasis added).

Ruling for the Altos on any or all of their first three

claims would mean vacating the Disenrollment Order and,

unless determined to be barred by res judicata (as the Altos

maintain in their first claim for relief), remanding to the BIA

for redetermination of the Altos’ enrollment status. That

relief is “meaningful” as between the Alto descendants and

the BIA, even if it does not bind the Tribe directly.

In several past cases involving Rule 19 motions by Indian

tribes, we have held it impossible to afford complete relief

because the court’s judgment would not bind the absent tribe. 

See, e.g., Dawavendewa, 276 F.3d at 1155–56; Confederated

Tribes, 928 F.2d at 1498. In those cases, however, the injury

complained of was a result of the absent tribe’s action, not

only or principally that of the named agency defendant. Such

is not the case here with respect to the Altos’ first three

causes of action.

In Dawavendewa, for example, the plaintiff challenged a

provision of a lease agreement between the defendant power

company and the Navajo Nation, the lessor of the land on

which the company operated a facility. See 276 F.3d at

1153–54. The provision required the power company to give

members of the Navajo tribe preferential treatment in hiring. 

Id. at 1153. We held that the Navajo Nation was a necessary

party to the suit because the court could not assure the

plaintiff his requested relief—employment by the

defendant—in the Nation’s absence. Even if the court ruled

in the plaintiff’s favor and enjoined the defendant–lessee

from applying the challenged lease condition, the tribe could
30 ALTO V. BLACK

still “move to enforce its rights under the lease and ultimately

evict the employer from the reservation,” Disabled Rights,

375 F.3d at 880 (discussing Dawavendewa), and insist on

enforcing the provision with a new lessee. See

Dawavendewa, 276 F.3d at 1155–58.

We reached a similar conclusion in Confederated Tribes.

There, a group of Indian tribes brought suit to enjoin the

federal government from negotiating with the Quinault

Nation as the sole governing authority for the Quinault

Nation Indian Reservation, requesting a declaratoryjudgment

rejecting the Quinault Nation’s exclusive governing status. 

928 F.2d at 1497. But the plaintiffs did not name the Nation

as a party. We concluded that joinder of the Quinault Nation

was necessary because a judgment against the federal

defendants would not bind the Nation, which could continue

to “assert sovereign powers and management responsibilities

over the reservation,” the very practice that prompted the

plaintiffs’ complaint. Id. at 1498.

Here, in contrast, the injury complained of in the first

three causes of action is the BIA’s violation of the APA in

carrying out a responsibility delegated to it by the Band,

under the Band’s own Constitution. The injury resulted from

the Secretary’s actions in ruling the Altos ineligible for tribal

membership, not from the Band’s prior actions with regard to

the membership issue. Vacating or reversing the

Disenrollment Order, and remanding if necessary for

rehearing, would afford the Altos complete relief as to their

first three causes of action. We may assume that the Band

will then abide by the BIA’s decision, as it is committed by

its own Constitution to do, and will also, consistently with its

Constitution, provide the Altos with the various requisites of

membership.
ALTO V. BLACK 31

Should that not occur, then questions regarding the

availability of further BIA and judicial enforcement will

arise. Some of those questions may be addressed, or

anticipated, in the fourth and fifth causes of action in the

Altos’ First Amended Complaint. But as we have explained,

those causes of action are not presently before us. As to the

three causes of action that are before us, complete

relief—that is, relief limited to that available in an APA cause

of action, which is affirmation, reversal or remand of the

agency action—can be provided between the parties. The

practical implications of the Secretary’s decision for the

Altos’ entitlement to tribal rights and benefits hinge not on

any court order, but on the Band’s legal duties to its

members, under its own governing documents and applicable

federal law.

In short, the Tribe’s absence does not preclude “complete

relief” as to the Altos’ first three causes of action.

2. Protection of Legal Interests and Avoidance of

Inconsistent Obligations

The second factor in determining whether an absent

party’s joinder is required “focuses on whether the absent

party’s participation is necessary to protect its legally

cognizable interests or to protect other parties from a

substantial risk of incurring multiple or inconsistent

obligations because of those interests.” Disabled Rights,

375 F.3d at 880; see also Fed. R. Civ. P. 19(a)(1)(B)(i) & (ii). 

The Band asserts interests in ensuring that only qualified

individuals are enrolled and in maintaining its sovereignty

over membership matters.
32 ALTO V. BLACK

“As a practical matter, an absent party’s ability to protect

its interest will not be impaired by its absence from the suit

where its interest will be adequately represented by existing

parties to the suit.” Washington v. Daley, 173 F.3d 1158,

1167 (9th Cir. 1999). We consider

three factors in determining whether existing

parties adequately represent the interests of

the absent tribes: whether ‘the interests of a

present party to the suit are such that it will

undoubtedly make all’ of the absent party’s

arguments; whether the party is ‘capable of

and willing to make such arguments’; and

whether the absent party would ‘offer any

necessary element to the proceedings’ that the

present parties would neglect.

Shermoen, 982 F.2d at 1318 (quoting Cnty. of Fresno v.

Andrus, 622 F.2d 436, 439 (9th Cir. 1980)). Applying those

factors, we conclude that the Band’s interest in limiting

enrollment to qualified individuals is adequately represented

by the BIA.

First, the United States shares with the Tribe an interest

in defending the Assistant Secretary’s Disenrollment Order,

which granted precisely the relief the Tribe sought when it

appealed to the BIA. The BIA has, to date, vigorously

defended its Disenrollment Order on its merits. The Band has

not presented any arguments that it would offer in defense of

the Order which the BIA has not or would not make.

Second, consistent with its fiduciary responsibility to

Indian tribes, the BIA has repeatedly avowed its intention and

ability to represent the Band’s interests with respect to the
ALTO V. BLACK 33

APA aspects of the complaint, claims one through three. 

“[T]he federal government, including the Secretary, has a

trust responsibility to the Tribe[],” as a trustee, which

“obligates the Secretary to protect the Tribe[’s] interests in

this matter.” Daley, 173 F.3d at 1168.

To be sure, conflicts can arise between the United States

and an Indian tribe; when they do, the government cannot

adequately represent the tribe’s interests. Id. at 1167. But no

such conflict has surfaced to this point in this case, as the

district court, and now this court, has addressed only claims

one through three in the Altos’ complaint. The Assistant

Secretary is defending the very order requested by the Band,

which strips the Altos of their status as members of a

federally recognized tribe. It cannot be said that the

Secretary’s trust obligations to the Band are at odds with the

BIA’s obligations to the Altos, whose membership the Band

contests. As the BIA points out:

[I]t is inherent in the process the Tribe created

in its Constitution for the determination of

membership in the Tribe, and the

disenrollment of members whose enrollment

was based on inaccurate information, that the

final decision maker, the Secretary of the

Interior, have fiduciary duties to both the

Tribe and any Indians whose membership in

the Tribe is in dispute. Since those duties did

not deter the Tribe from making the Secretary

of the Interior the final decision maker, they

should not prevent him from defending his

decision.
34 ALTO V. BLACK

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. Finally, during the pendency of this

litigation, under the district court injunction as clarified and

10 The Altos’ fifth cause of action seeks a declaratory judgment to this

effect.
ALTO V. BLACK 35

implemented by the Memorandum Order, any disenrollment

date does not matter, as the Disenrollment Order is

inoperative.

As to the Band’s legal interest in maintaining sovereign

control over membership issues, granting the relief requested

in claims one through three—vacatur of the BIA’s

Order—would not undermine authority the Tribe would

otherwise exercise. The Tribe itself has delegated its

authority over enrollment to the BIA. See Const. of Band,

art. III, § 2. The Altos do not seek to alter the Band’s rights

vis-a-vis enrollment decisions. Any attempt to do so in the

Band’s absence would clearly be impermissible. See Pit

River Home & Agric. Coop. Ass’n v. United States, 30 F.3d

1088, 1099 (9th Cir. 1994) (holding that a tribal council was

a necessary party in a suit challenging the council’s

designation by the Secretary of Interior as the beneficiary of

reservation property); Confederated Tribes, 928 F.2d at

1498–99 (holding the Quinault Nation a necessary party in a

suit challenging the United States’ recognition of the Nation

as the sole governing authority of a reservation). Rather,

temporarily making the Disenrollment Order unenforceable

is akin to staying removal in the immigration context; it

“operates only upon the . . . proceeding itself,” and does not

impose a coercive order on any sovereign entity. Cf. LeivaPerez v. Holder, 640 F.3d 962, 966 (9th Cir. 2011) (per

curiam) (citation and internal quotation marks omitted).

In sum, complete relief can be afforded in the Band’s

absence as to the Altos’ claims regarding the propriety of the

Assistant Secretary’s Disenrollment Order. Because the

Tribe is not a necessary party to the first three causes of

action, the district court did not err in declining to decide

whether tribal sovereign immunity bars the Band’s joinder,
36 ALTO V. BLACK

and if so, whether the action should be dismissed under Rule

19(b).

E. The Motions to Dismiss Claims Four and Five

The Band urges us to review the disposition of its motions

to dismiss the fourth and fifth causes of action. But as the

district court made clear in the order under review, the

clarified preliminary injunction does not rest on the Altos’

fourth and fifth claims.11 Determining whether the court has

subject matter jurisdiction over claims four and five, or

whether the Band is a required party to those claims, is

therefore not necessary to our review of the order refusing to

dissolve the injunction. Consequently, our pendent

jurisdiction does not extend to the Band’s motions to dismiss

those claims.

Nor do the Band’s motions on claims four and five

independently fall under the collateral order aspect of the

final judgment rule. The collateral order doctrine, first

articulated in Cohen v. Beneficial Industrial Loan Corp.,

337 U.S. 541, 546–47 (1949), permits review as if they were

final decisions of a “small class” of orders that: “(1)

conclusively determine the disputed question; (2) resolve an

important issue completely separate from the merits of the

action; and (3) would effectively be unreviewable on appeal

from a final judgment.” Rodriguez v. Lockheed Martin

11 To the degree that the Altos’ fourth and fifth claims seek further relief

beyond the clarified injunction on a different legal basis—namely, that the

BIA has a fiduciary duty to ensure their access to tribal rights and

benefits—the district court has not addressed that legal question, so there

is no pendent issue before us.
ALTO V. BLACK 37

Corp., 627 F.3d 1259, 1264 (9th Cir. 2010) (citation,

alterations, and internal quotation marks omitted).

The district court’s order deferring adjudication of the

Band’s motion to dismiss the Altos’ fourth and fifth causes of

action does not satisfy the first of these criteria. “An order

deferring a ruling is not conclusive.” Miller v. Gammie,

335 F.3d 889, 895 (9th Cir. 2003) (en banc). Moreover, even

if we were to construe the district court’s deferred ruling on

the motion regarding claims four and five as a decision

declining to dismiss, as the Band asks us to do, we would not

have jurisdiction to review that decision now. The denial of

the Band’s Rule 12(b)(1) motion to dismiss claims four and

five for lack of subject matter jurisdiction is not appealable

under the collateral order doctrine. See Catlin v. United

States, 324 U.S. 229, 236 (1945); Kwai Fun Wong v. United

States, 373 F.3d 952, 960 (9th Cir. 2004); United States v.

Atwell, 681 F.2d 593, 594 (9th Cir. 1982) (citing United

States v. Layton, 645 F.2d 681, 683 (9th Cir. 1981)).

Nor is the denial of the Band’s Rule 12(b)(7) motion to

dismiss those claims for inability to join a required party

under Rule 19 among the narrow class of rulings collaterally

appealable. One criterion for application of the collateral

order doctrine is that the order “would effectively be

unreviewable on appeal from a final judgment.” Rodriguez,

627 F.3d at 1264. Courts can, and do, effectively review and

correct Rule 19 decisions after final judgment, including by

ordering dismissal at that point of the lawsuit, as otherwise

appropriate, if a required party cannot be joined. See, e.g.,

Provident Tradesmens Bank & Trust Co. v. Patterson,

390 U.S. 102, 110–12 (1968) (considering a party’s

indispensability under Rule 19(b) on an appeal from a final

judgment); Universal Reinsurance Co. v. St. Paul Fire &
38 ALTO V. BLACK

Marine Ins. Co., 312 F.3d 82, 87–89 (2d Cir. 2002) (same);

United States v. San Juan Bay Marina, 239 F.3d 400, 405–07

(1st Cir. 2001) (same); Gardiner v. V.I. Water & Power

Auth., 145 F.3d 635, 640–43 (3d Cir. 1998) (same). Although

no Ninth Circuit opinion so states, other circuits have held

that a Rule 19 determination is not immediately appealable,

because it can be reviewed after a final judgment. See, e.g.,

Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1148

(10th Cir. 2011); MasterCard Int’l Inc. v. Visa Int’l Serv.

Ass’n, 471 F.3d 377, 383–84 (2d Cir. 2006); Price v. J & H

Marsh & McLennan, Inc., 493 F.3d 55, 63 (2d Cir. 2007). 

We find the reasoning of these cases persuasive, and so hold

as well.

We recognize that the district court’s denial of a motion

to dismiss on grounds of sovereign immunity is immediately

appealable under the collateral order doctrine. See Terenkian,

694 F.3d at 1131 (citing Phaneuf, 106 F.3d at 304); Holy See,

557 F.3d at 1074. Thus, had the Band been named as a party

and then moved to dismiss the suit on grounds of tribal

immunity, the district court’s denial of such a motion or

refusal to rule on it would be subject to interlocutory appeal. 

But that exception does not apply here. The Band’s

immunity argument is of a second order; we would reach it

only if we first reversed the district court’s determination

under Rule 19(a) that the Band was not a required party for

claims four and five. But as those claims are not presently

before us, we have no reason to reach that question. And

unless and until the Band is determined to be a required party

for purposes of claims four and five, the sovereign immunity

issue does not arise. The immunity issue regarding claims

four and five is therefore premature, and we may not reach it,

via the collateral order doctrine or otherwise.
ALTO V. BLACK 39

In sum, we lack jurisdiction at this stage to review

whether the Altos’ fourth and fifth claims should be

dismissed under either 12(b)(1) or 12(b)(7).

III. CONCLUSION

The district court properly exercised subject matter

jurisdiction over the Altos’ claims challenging the agency’s

final action and correctly concluded that the Band is not a

required party to the resolution of those claims. Accordingly,

the Band has demonstrated no basis for dissolving the

preliminary injunction presently in effect, as articulated in the

BIA’s Memorandum Order.

For the foregoing reasons, we AFFIRM the district

court’s denial of the Band’s motion to dissolve the

preliminary injunction as limited by the BIA’s Memorandum

Order, prohibiting the BIA from giving effect to the

Disenrollment Order pending adjudication of this suit. But

we REMAND to allow the district court formally to clarify

the original injunction to conform with the understanding of

the injunction we have described. We likewise AFFIRM the

denial of the motion to dismiss claims one through three of

the Altos’ First Amended Complaint. Finally, we DISMISS

for lack of jurisdiction the Band’s appeal as to its motion to

the dismiss claims four and five.

AFFIRMED IN PART, DISMISSED IN PART, AND

REMANDED.