F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

A L B E R T P. A L T O ; A

N D R E E. A L T O ; A N T H O N Y A L T O ; B R

A N D O N A L T O ; C H R I S T Y A L T O ; C H R

I S T O P H E R J

. A L T O ; D A

N I E L J

. A L T O , J R .; D A N I E L J

. A L T O , S R .; D O M I

N I Q U E N. A L T O ; R A Y M O N D E. A L T O , S R

. ; R A Y M O N D E. A L T O ; R A

Y M O N D J

. A L T O , a Representative for B en Alto, deceased, Marcus M. Alto, deceased, Marcus R. Alto, deceased, David Gomez , deceased, Susan Martinez

, deceased; R O B E R

T A L T O ; R O N

A L D J

. A L T O , S R .; V I C T O R

I A (A L T O ) B A L L E W ; A

N G E L A (M A R T I N E Z

M C N E A L ) B A L L O N ; J U

A N J

. B A L L O N ; R E B E C C A (A L T O ) B A L L O N ; R U B Y B A L L O N ; J A

N I C E J

. B A

N D E R A S ; P E T E R B A

N D E R A S ; V I C T O R B A N D E R A S ; D A V I D A

. B R

O K I E W I C Z ; D I A N A B R O K I E W I C Z ; P A T R

I C I A D. B R O K I E W I C Z ; M O N I C A (S E P E D A ) D I A Z ; A N T H O N Y F O R R E S T E R ; D U S T I N F O R R E S T E R ; J O H A

N N A (A L T O ) F O R

R E S T E R ; S A R

A H F O R R E S T E R ; E R

N E S T G O M E Z ; H E N R I E T T A (A L T O ) G O M E Z ; K A T H L E E N M. G O M E Z ; H U M

B E R T O R. G R E E N ; L Y D I A (A L T O ) G R

E E N ; P A U L A N T H O N Y G R E E N ; M A R Y J O N o. 12-56145

D.C. No. 3:11-cv-02276- I EG-B L M

OPI NI ONA L T O V

. B L A C K 2

(A L T O ) H U R

T A D O ; J U S T I

N A

. I S L A S ; C Y N T H I A (S E P E D A ) L E D E S M A ; D E S T I N Y C. L E D E S M

A ; A M A N D A M. M I N G E S ; I S A

B E L L E M. S E P E D A ; L U P E S E P E D A ; D E B O R

A H L

. V A R

G A S ; D E S I R E E V A R G A S ; J E R E M I A H V A R G A S ; J E S S I A H V A R

G A S ; T E R R Y W E I G H T ; J A S O N A L T O ; C A R O L E D I T H C A V A Z O S ; A I M E E R E

N A E D I A Z ; D A N I E L G O M E Z ; L I S A G O M E Z H U N T O O N ; C H R I S T I N E M A R T I N E Z ; M A R L E N E M. M A R

T I N E Z ; C A S S A N D R A S E P E D A ; P A M E L

A J

. A L T O , as Guardian ad litem for Marcus M. Green, a minor; P E D R O B A N D E R A S , as Guardian ad litem for Reina A. B a

nderas, a minor; D A W N C A S T I L L O , as Guardian ad litem for Alex is N. L edesma, a minor, and J esse L e desma, a minor; M A R I A A

. P E R E Z

- R O L O N , as Guardian ad litem for Roland J . Alto, J r., a minor; M A R T I N D I A Z , as Guardian ad litem for J e ssica Diaz , a minor, Toni L

. Diaz , a minor, and J acob Diaz , a minor; D O N

A L D M A R

T I N E Z , as Guardian ad litem for Donelle Martinez , a minor, J ustine Martinez

, a minor, and Sabrina Martinez , a minor, Plaintiffs-Appellees

,

v

.A L T O V

. B L A C K 3

M I C H A E L B L

A C K , Director of the B ureau of I

ndian Affairs of Department of I

nterior; R O B E R

T E B E N , Superintendent of the B u reau of I ndian Affairs, Southern California Ag ency , of Department of I nterior; K E V I

N K. W A S H B U R

N , Assistant Secretary of I n dian Affairs of Department of I

nterior; S A L L

Y J E W E L L , Secretary

of Department of I nterior, Defendants-Appellees

,

And

D O E , Defendants, 1 throug h 10, inclusive, Defendant

,

S A N P A S Q U

A L B A N D O F M I S S I O N I N D I A N S , Intervenor-Appellant

.

A ppeal from the United States District Court for the Southern District of California I rma E. Gonz alez , Chief District J u dg e, Presiding

Arg ued and Submitted F ebruary 1 1, 2013—Pasadena, California

F iled December 26, 2013A L T O V

. B L A C K 4

B efore: Marsha S. B erz on and Paul J . W atford, Circuit J udg es, and J a mes G. Carr, Senior District J udg e

. *

Opinion by J udg e B e rz on

SUMMARY * *

Tribal Af

f a irs

I n an appeal from the district court’s orders deny ing a motion to dissolve a prelim i n ar y injunction and deny ing motions to dismiss in an action c oncerning a d is p u t e over membership in a

n I ndian tribe, the panel affirmed in part, dismissed in part, and remanded.

The San Pasqual B and o f Mission I ndia n s ’ g overning documents vested the United States Department o f I nterior, B ureau of I n dia n Affairs, with ultimate authority over membership. T h e p anel held that the district c ourt h ad jurisdiction to enjoin preliminarily the enforce m en t of the B ureau of I ndian A f

fairs’ order u

p holding the B and’s decision to disenroll d escendants of Marcus Alto, Sr. f rom the B and, and that the B and w as not a r equired party , because the claims underly

ing the p reliminary injunction concern solely the propriety of final ag ency a ction. According ly

, the panel affirmed the dist r i c t c o urt’s denial of the B and’s motion to

* T h e Ho n orab le J am es G. C arr, Sen io r District J u d g e f o r th e U .S. District Co u

rt f o r th e No rth ern District o f Oh io , sittin g b y

d esig n atio n

.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.A L T O V

. B L A C K 5

dismiss the claims on which the injunctio n r e s t s and the district c ourt’s consequent refusal to dissolve the preliminary injunction. The p anel remanded to a llow the district court to clarify its order. F inally

, the p anel held that it la c k ed jurisdiction to review o n interlocutory appeal the B and’s motion to dismiss the Altos’ oth e r claims, on w hich the district court ex pressly deferred ruling

.

COUNSEL

Geoff r e y D. Strommer (arg

ued), Vernon L

. Peterson, a nd Timothy C

. Seward, Hobbs, Straus, Dean & W a lker, L L P, Portland, Oreg on, for I ntervenor-Appellant.

Thor O. Emblem (arg

ue d ) a n d Tracy L

. Emblem, L aw Offices of T hor O. Emblem, Escondido, Calif o r n i a, for Plaintiffs-Appellees.

J ohn L

. Smeltz er (arg

ued), I g n acia S. Moreno, Assistan t Attorney G eneral, a

nd Katherine J

. B arton, Environment a nd Natural R e s o u rces Division, United States Department o f J ustice, W ashing ton, D.C., for F ederal Appellees.A L T O V

. B L A C K 6

OP INION

B ERZ ON, Circuit J udg e :

Our question c o n cerns the propriety o f a preliminary i njunction issued with reg ard to a dispute over memb e r s h i p in an I ndian tribe. “‘[ A] tribe’s rig ht to define i t s o w n membership for tribal purposes has long been recog niz ed a s centr a l to its ex istence as an independent political community .’” Cahto Tribe o f L a ytonville Rancheria v

. Dutschke

, 715 F .3d 1225, 1226 (9th Cir. 2013) (quoting Santa Clar a Pu e b l o v. Martinez
, 436 U.S. 4 9
, 72 n .32 ( 1978)). I n view of the importance of tribal membership decisions and a s p a rt of the federal p olicy f avoring tribal self-g overnmen t , matters of tribal enrollment are ge nerally bey ond federal judicial scrutiny

. See Lewis v. Norton
, 424 F .3d 9 59, 961 (9th Cir. 2005). Here, however, the trib e ’ s own g overning documents vest the United States Dep a r tment of I nterior, B ureau of I ndian Affairs ( “B I A”), with u ltimate authority

over membership decisions. The issues in this case center on whether, and to what deg ree, this circum s t a n c e varies the

us u a l j udicial “hands off” policy for tribal membership decisions.

Specifically

, we m ust decide whether the district court had jurisdiction to enjoin preliminarily the enforcement of a B I A order upholding the B and’s d ecision to dise n r oll descendants of Marcus Alto, Sr. (“the Altos”), from the San Pasqual B a

nd o f Mission I ndians (“the B and” or “the Tribe”), and w hether such injunctive re lief may issue in the B and’s absence. We h old that the ex ercise of jurisdiction was proper, and that the B and is not a required party for the a djudication of the c laims underly ing the prelimin a r y injunction, as they

concern solely the p r o p r iety o f final ag e ncy action.A L T O V

. B L A C K 7

According ly

, we affi r m t he district court’s denial of the B and’s motions to dismiss the c laims on which the injunction
rests an d its consequent refusal to d issolve the preliminary injunction. And we remand to a llow the district court formally to c l arify its order in compliance with our understanding of it, as described b elow. W e lack jurisdiction
to review on inte rl o cutory appeal the B and’s motion to dismiss the Altos’ other claims, on which t h e d i s trict court

ex p ressly deferred ruling

.

I. F ACTS & P ROCEDURAL HISTORY

A. The Enrollm ent Dispute

The San Pasqual B an d of Mission I n dians is a federally
recog niz ed I ndian tribe whose a n cestors occupied the San P asqual Valley

, east of San Dieg o, California. Article I I I
, section 2 of the B and’s Constitution g ives the Secretary o f the I nterior final authority over tribal enrollment decisions. See Const. & B y laws of the San Pasqual B a nd of Mission I ndians,
art. I I I
, § 2 ( “Const. of the B and”). The Constitution also

ex p ressly incorporates federal r e gulations, a dopted in 1960 and formerly codified a t 25 C.F .R. §§ 48.1–48.15 ( “the 1960 Reg ulations”), which addressed tribal enrollment criteria, the
process for completing an initial m e mbership roll, the procedures for keeping

the membership roll current, and the purposes for which the roll was to be used.

The 1960 Reg u lations have since b een r emoved from the Code of F ederal Reg ulations, 1 but the reference t o them

1 S ee En ro llm en t o f In d i an s o f th e San P asq u al Ban d o f Missio n In d ian s in Calif o rn ia, 5 2 Fed

. Reg

. 3 1 39 1

- 0 1 (A u g

. 2 0
, 1 9 8 7 ) (n o tin g th e red esig n atio n o f th e 19 6 0 Reg u l atio n s f ro m 25 C.F.R. P art 48 to 2 5 C .F.R.A L T O V

. B L A C K 8

remains in the Tribe’s Constitution. The parties a g ree that the substance of the otherwise defunct 1960 Reg ulations survive as tribal law and g overn enrollment decisions for the B and.

I n 1987, Marcus A lto, Sr. a nd his descendants applied to b e a d d ed to the San Pasqual B and membership roll, on the basis of Marcus Alt o Sr.’s claimed linear descent from J ose Alto and Maria Duro, b oth listed as members of the B and on the 1910 Cens u s R o ll. 2 Under 25 C.F .R. § 48.5(b) (1960),

“ [ d] escendants of I ndians whose names appear as memb e rs of the B and on the Census R o l l” are elig ible for enrollment, provided they possess one-eig ht h o r more deg ree of I ndian blood of the B and and are not affiliated with any other tribe. The Altos’ applications were adjudicated by the B I A ’s Superintendent of the Southern California Ag ency after Alto, Sr.’s d eath in 1 988, resulti n g, i n 1991, in a finding that the Altos were elig ible for membership. The B and appealed the enrollment decision to the B I A’s Assistant Secretary –I ndian Affairs, who affirmed.

S o s tood the Altos’ leg al status until, in 2007, a n individual member of the B and formally challeng ed Marcus

P a r t 7 6 ); En ro llm en t of In dian s ; R em o v al o f Reg u latio n s, 6 1 Fed

. Reg

. 2 7 7 8 0

- 0 1 (J u n e 3
, 1 99 6 ) (rem ov in g Part 7 6 ). A ll ref eren ces to th e f

ed eral
reg u latio n s in co rp o r a t e d i n to th e B an d ’ s Co n stitu tio n are to t

h e v ersio n ad o p ted in 1 96 0

.

2 Su ch m em

b ersh ip d isp u tes h av e b een p ro lif eratin g in recen t y ears, larg ely driv en b y th e ad v en t o f I n d i a n g am in g , th e rev en u es f ro m w h ich

are d istrib u ted am o n g trib al m em b ers. S ee g en era lly Su zian n e D. P ain terT h o rn e, If Yo u Bu ild It, Th ey W i ll Co me: Preservin g

Trib a l S o vereig n ty in th e Fa ce o

f In d i a n Ca sin o s a n d t h e New Premiu m o n Trib a l Memb ersh ip
, 14 L ew is & Clark L

. Rev

. 3 1 1
, 31 3 & n n .8

– 1 0
, 3 2 0 (2 0 1 0 );

see a lso Alva ra d

o v. Ta ble Mo u n ta in Ra n ch eria
, 5 0 9 F.3 d 1 0 0 8
, 10 1 4

– 1 5 (9 th Cir. 2 00 7 ); Lewis , 4 2 4 F.3 d at 9 6 0

.A L T O V

. B L A C K 9

Alto, Sr.’s e nrollment before the B and’s Enr o llment Committ e e

. The contention was that Alto, Sr. was the adoptive son of J os e Alto and Maria Duro, n ot their biolog ical child, and therefore did not have the requi s i te d e gr ee of I ndian b lood to be enrolled a s a member of t h e B and. 3 The Committee voted to disenroll Alto, Sr.’s descendants, and, after notify ing the Altos, requested that the B I A Reg ional Director approve its disenrollment decision on the basis o f the new evidence. See 2 5 C.F .R. § 48.5(b) (1960).

W h en the Reg ional Director denied the request, the B a nd appealed his d ec ision to the Assistant Secretary –I ndian Affairs. The Assistant Secretary reversed the d ecision of the Reg ional Director, issuing the 22-pag e 2011 Disenrollment Order challeng ed in this suit. Making his o w n finding s o f fact, the Assistant Secretary concluded t h a t, apply ing the B and’s membership criteria set forth in the 1960 Reg ulations, the Altos’ names must b e d e l e ted from the B and’s membership rolls because enrollment was based on inaccurate information reg arding Marcus Alto, Sr.’s blood lineag e.

The Altos thrice soug ht reconsideration of the A ssista n t Secretary ’ s decision. After receiving no response, they filed the instant suit.

3 T h e U.S. District C o u rt f o r th e So u th ern District of C alif o rn ia d ism issed tw o p rev i o u s ch allen g es t o th e B IA ’ s ap p ro v al o f th e A lto s ’

en ro llm en t, citin g v ario u s b ars to litig atio n , in clu d in g in ter a lia

, stan d in g , statu te o f lim itatio n s, an d co m p u lso ry j o i n d e r

. S

ee Ord er G ran tin g Def en d an t’ s Mo tio n to Dism iss C o m p lain t , C a ylo r v. BIA
, No

. 0 3

- c v

- 1 8 5 9 (S.D. C al. A

p r. 2 2
, 2 0 0 4 ); Ord er G ran tin g Def en d an ts’ Mo tio n to Dism iss, Atila n o v. BIA , No . 0 5

- cv

- 1 1 3 4 (S.D. Cal. Dec. 1 , 2 0 0 5 ).A L T O V

. B L A C K 10

B. The F ederal Litigation

The Altos sued the Assistant Secretary and other federal

o f f icials, all in their official c apacities, 4 and m o v e d concurrently for a temporary restraining order a nd preliminary injunction. The complaint did not name the B a nd as a defendant.

The Altos’ initia l p leading s describe four claims for declaratory and injunctive r elief. 5 The first three claims seek the court’s invalidation o f the 2011 Disenrollment O rder d ue to various alleg ed errors in th e ag ency ’s decisionmaking

. Specifically

, t h e f

i r st claim asserts that the 1995 decision o f the Assistant Secretary
, upholding Marcus Alto, Sr.’s membership in the B and, precluded the Assistant Secretary ’s 2011 D isenrollment Order under the doctrine of r es judicata; the second contends that the Assistant Secretary ’ s d ecision

v i o lated the Altos’ rig hts to procedural due p rocess; and the third seeks r eversal of the Disenrollment Order on the g r ound that it was arbitrary

and capricious ag ency

action.

4 Fo r p u rp oses o f th is o p i n io n , w e ref er to all o f th e f

ed eral def en d an ts

co llectiv ely

as “ th e B IA .”

5 T h e A lto d escen d an ts ad d ed a f if th claim f o r relief w

h en th ey am en ded th eir co m p lain t in March 2 0 1 2
, af ter t h e issu an c e o f t h e p relim in ary in j u n ctio n b ef

o re u s. T h is f

if th claim seek s: (a) an o rd er directin g th e B IA

an d t h e Dep artm en t o f In terio r to ack n ow led g e t

h at th e A l to d escen d an ts

w ere n ev er rem o v ed f

ro m th e B an d’ s f

ed erally ap p ro v ed m em

b ersh ip ro l l

an d are th eref

ore en titled to p er cap ita p ay m en ts u n d er th e In d ian Gam in g Reg u lato ry A ct (“ IGRA ”), 2 5 U.S.C. § § 2 7 0 1

– 2 7 2 1
, an d /o r th e In d ian Civ il Rig h t s A ct (“ ICRA ”), 25 U.S.C. § § 1 3 0 1 –1 3 0 3 ; an d (b ) an o rd er d irectin g th e f

ed eral g ov ern m en t t o “ ex ercise its f id u ciary r e sp on sib ility

a n d p r o t ect th e P lain tif

f s’ rig h t to eq u al t

reatm en t in trib al m em

b ersh ip b en ef its.” T h e d istrict co u rt h as n o t y et ru led o n an y asp ect o f th is claim

, so w e d o n o t d o so eith er.A L T O V

. B L A C K 11

The A dministrative Procedure Act (“APA”) pro vides a rig ht to judicial review of al l “final ag ency a ction f or which there is no other adequate remedy in a court.” 5 U .S.C. § 704. Althoug h only the third c l a i m i s ex plicitly denominated as an APA claim in the c o mplaint, the first three claims all involve cha l l e ng es to the p ropriety of the B I A ’s decision. All t h re e may therefore be f airly characteriz ed a s claims f or judicial review of ag ency a ction under t h e APA, 5 U.S.C. § § 701–706. See S k inner v

. Switzer
, 131 S. Ct. 1289, 1296 (2011) (“[ U] nder the F edera l R u l e s of Civil Procedure, a complaint need no t p i n plaintiff’s claim for relief to a p recise leg al theory

. ”); M cCal d e n v

. Cal. Library Ass’n
, 955 F .2d 1214, 1223 (9th Cir. 1990) (h o l d i n g t hat a plaintiff “ is not required to state the statutory or constitutional basis for his claim, only

the facts underly

ing it”).

Alleg ing that the B I A has failed to fulfill its fiduciary d u ty to protect their interests, the fourth “cause of action” requests a preliminary injunction to “preserv[ e] the [ A l t os’]
status quo” rig hts and benefits. As elaborated in their motion for a p reliminary injunction, the Alt o s soug ht a court order prohibiting the removal of enrolled Alto d escendants from the Tribe’s membership rolls and compelling the B I A
, pending resolution of this suit, to order the B and to provide the Altos with continued ri g h ts a

nd benefits of tribal membership (including access to health care, participati o n in tribal
g overna n ce decisions, and d isbursements o f tribal g aming revenues).

Soon after the f

i l i n g of the initial c omplaint, the B a nd moved to appear specially as a necessary party a nd s o ug ht dis m i s s al of the suit under F ederal Rule of Civil ProcedureA L T O V

. B L A C K 12

12(b)(7) for inability to join a r equired party under Rule 19. 6 J o i nder was b arred, the B and maintained, because of trib al sovereig n immunity

.

The d istrict court d eclined to dismiss the action, reason i n g that complete relief could be afforded absent the Tribe. The
court then g ranted the Altos’ request for a preliminary injunction, holding that th e Altos had raised substantial questions g oing to the merits o f their res judicata a nd arbitrary and capricious deci s ionmaking claims; that they

were likely to suffer irreparable harm due to the loss of access to rig hts and benefits associated with tribal membership; a nd that the balance of equities tipped sharply in their f avor. The preliminary injun c t i on f

o rbid the B I A from removing the Altos from the B and’s membership roll or taking any f urther action to implement the J a nuar y 2 0 1 1 Disenrollment Order pending completion of the litig ation. Th e i njunction also required the A ssistant Secretary to i s s u e interim orders directing the B and to: allow the Altos access to voting rig hts, meeting s of the B and’s c o uncil, and I ndian Health Service (“I HS”); make per capita distributions to the Altos of g aming

re v e nue f

or the duration of the lawsuit; a nd escrow the juvenile Altos’ per capita trust funds, “to the same ex tent a s

was required during the pend en c y of the administrative proceeding s and before the issuance o f the J anuary 28, 2011 [ disenrollment] order.”

The following month, the Assi s t ant Secretary issued a Memorandum Order and Report of Compli a n c e w ith the Preliminary I njunction. The Memorandum Order beg an b y

6 F o llo w i n g s ty listic am en d m en ts en acted in 20 0 7
, Fed eral Ru le o f Civ i l P ro ced u re 1 9 n o lo n g er ref ers to “ in d isp en sab l e” p arties, b u t in stead u ses th e term “ req u ired p arty .” W e d o so as w ell.A L T O V

. B L A C K 13

ex p laining that, in the Assistant Secretary ’s view, he lacks authority to “compel the B and to c o mply with all aspects o f the orders, ex a ctly as phrased by the court.” According ly

, the Order “ advise[d] ” the B and that deny ing the Altos v oting rights “shall be recog niz e d as a denial of [ their] due process rig hts, and w ill not b e r ecog niz ed b y the Department .” I t

“ notif[ied] ” I HS a nd the B and that the A ltos are elig ible for health services and that the Assistant Sec r e t a ry “ e xpect[s] ” I HS a nd the B and to comply wi t h r eg ulations reg arding the provision o f those services. And finally

, the order “ advised ” the Tribe that deny

ing distribution of per capita pay ments to memb e r s “ w ould constitute a violation of the B and’s Revenue Allocation Plan (RAP)” and “that while this order is in effect,
t h e Ba nd may place all per capita distributions to the Al t o descendants (inclu ding minors) into an escrow account created for th is purpose. I f the Alto descendants ultimately prevail in this litig ation, the B and must distribute the funds in the e scrow account to the Alto descendants, i n c l uding distribution to the minors’ trust fund as set forth in the B and’s approved RAP.”

The Al t o descendants, o bjecting to the Memorandum Order as noncompliant w i t h the preliminary injunction, moved the district court to compel the B I A’s compliance with the portion of the preli m i n a r y injunction that required the
ag ency to direct the B and to pay per capita g aming 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 in j u n ct i o n to reflect the B I A ’s concerns about the scope of the Secretary ’s authority

. 7

7 W e d iscu ss th e sco p e o f th e in j u n ctio n in m o re d etail in P art II.B

.A L T O V

. B L A C K 14

Once the preliminary injuncti on was in place, the B a nd
soug h t and was g ranted the rig ht to i n t e r v ene, without waiving its sovereig n immunity

, for the limited purpose o f f iling jurisdictional motions. The B and then move d t o dissolve the i n

j u n c t ion for lack o f jurisdiction. I ts bases for
t h a t request were, first, the assertion that the court’s preliminary injunction ord er depended on jurisdictionally impermissible interpretations of tribal law; and, second, that the p reliminary i n

j u n ction o rder subjects the B and to “substantial inequities,” b y providing relief running aga i nst the B a nd’s self-g overnance and property inter ests. I n addition, the B and ren e wed its earlier motion to dismiss the suit u nder Rule 12(b)(7), f or inability to jo i n a Rule 19- required par t y , a nd under Rule 12(b)(1), for lack of subject matter jurisdiction.

The B I A objected to the B and’s motion in part, arg uing that the B and is not a required party for the Altos’ first three

causes of action. The ag ency ag r eed with the B and, however, that the court lacked subject matter j u risdiction o v er the fourth and fifth causes of action.

Citing the lack o f any indication by the B I A that “it could
not make efforts to preserve the status quo pending resolution

o f the merits of [ the Altos’] claims under the APA,” the d i s t r ict court refused to d issolve the p reliminary injunction. The court proceeded, for purposes of ruling on the motion to dismiss, to bifurcate the Altos’ first three causes o f a c t i on from the last two. Reiterating its earlier decision deny ing the Tribe’s motions to dismiss the first three claims o n f ederal questi o n o r Rule 19 g rounds, the court delay ed a djudication of the motions to dismiss with reg ard to claims f our a nd five, citing : (1) u n certainties reg arding the A ltos’ abili t y to demonstrate subject matter jurisdiction o ver their fourth a ndA L T O V

. B L A C K 15

fifth claims f

or relief; (2) skepticism about the court’s ability
to proceed to the merits of those c laims in the B and’s absence; a

nd (3) the possibility that a d ecision upholding the Disenrollment Order would moot the fourth a nd 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 P resent Challenge to the P relim inary Injunction

W e beg in by

clarify ing the scope of the challeng e before

us. The issu a n c e of the preliminary injunction was not appealed by either orig inal party to the suit. And neither the Altos nor the enjoined entity

, the BI A
, a sk this court to dissolve the injunction or modify its scope. Rather, the B and, the intervenor in this a c tion for limited pur p oses, appeals from the district court’s refusal to dissolve the injunction a nd to dismiss the case.

W e have jurisdiction to review a district court’s refusal to dissolve a preliminary i n junction. See 28 U .S.C. § 1292(a)(1). Ty

pical ly

, “[ a ] party seeking modification o r dissolution of an injunction bears the burden of establishing
t h at a sig nificant chang e in facts or law warrants revision or dissolution o f the injunction.” Sharp v

. W eston , 233 F .3d 1166, 1170 (9th Cir. 2000). That requirement presumes that the moving party could have appealed t h e gr a n t o f the injunction but chose not to do so, and thus that a subsequent challeng e to the injunctive relief must rest on g rounds that could n ot have been raised before. S ee Transgo, Inc. v. Ajac Transmission P arts Corp.
, 9 11 F .2d 363, 365 (9th Cir. 1990).A L T O V

. B L A C K 16

Here, however, where t h e B and was permitted to intervene on l y after the issuance o f the injunction and only for the limited purpose of filing jurisdicti onal motions, the usual limitation on motions to dissolve injunction s is inapposite. The B and, a s a non-party , had no p r i o r opportunity to challenge t h e g rant of the injunction. And it doe s n o t challeng e the substance of the district court’s analy sis as to whether injunctive relief w a s w arranted. I nstead, consistent w ith the limited purposes for which it was permitted to intervene, the B and soug ht dissolut i o n of the injunction on “jurisdictional” g rounds.

On this appeal, therefore, we do not consider “ t he propriety o f the u n d e r l y ing order.” Sharp

, 233 F

. 3d at 1169–70. T o prevail on the issues that the B and can a nd does raise, the B and must show that the d istric t court erred b y apply ing an erroneous leg al standard in determining either (1) that it had subject matter jurisdiction to adjudicate the Altos’ claims and g r ant preliminary injunctive relief or ( 2) t h a t i t

was proper to proceed in the B and’s absenc e

. S ee Credit Suisse First Bos. Corp. v. Grunwald

, 400 F .3d 1119, 1126 n.7 (9th Cir. 2005).

B. Scope and Substance o f the Claim s and the Injunctive Relief

To review those issues, we must first clarify the scope o f the injunctive relief g ranted a nd the claims on which it rested.

I n assessing whether injunctive relief was w arranted, the district court analy

z ed the Alt o s ’ l ikelihood of success only with respect to their first three causes of action, based on res judicata, due p rocess, an d arbitrary and capricious ag ency

a c t i o n

. The court did not d iscuss the merits of the f ou r t hA L T O V

. B L A C K 17

claim, related to the B I A’s f iduciary duty and f

ailure to act to protect the Altos’ a ccess to tribal rig hts and bene fits. The harm alleg ed in the Altos first three claims stemmed from purported errors in ag ency decisionmaking

.
Ty pically

, a preliminary injunction issued reg arding APA review of ag ency decisionmaking preserves the court’ s jurisdiction to g rant complete relief by simply suspending the implementation of challeng e d ag ency action pending full

c o urt review. See, e.g. , City of S an Diego v. W

hitm a n , 242 F .3d 1097, 1098 (9th Cir. 2001). T he orig inal injunction issued in this case tracked the sort of prelim i n ary relief ordinarily available in A PA cases insofar as it “restrained a nd enjoined” the B I A, “for the durat ion of this lawsuit from removing [ the Altos] from the San Pasqual Tribe’s membership roll and from ta k i n g a ny further action to implement the [ c halleng e d D isenrollment Order.] ”

The remainder of the o rig inal preliminary injunction,
parag raphs two throug h five, went further. I t compelled the B I A to take a ction to effect temporary r e s t oration of the Altos’ access to tribal rig hts and benefits.

Recog niz ing that the breadth of the d istrict court’s order

was questionable, the B I A issued a Memorandum Order a nd Report of Compliance that, in op er a t ive effect, treats the d i s t r i c t c o u r t i n

j u n c t i o n a s o n l y s u s p e n d i n g t h e implementation of the Disenrollment Order pending plenary review of the a g ency ’s action. W hile it a ddresses the impact of a suspension o f the Disenrollment Order on the Altos’ rig hts and benefits vis

- a-vis the B and, the Memorandum Order—ex cept in one r espect we discuss later—did n ot command the Tribe to take any

particular steps pertaining to the Altos’ membership status. The leg al oblig ations to whichA L T O V

. B L A C K 18

the Memorandum O rder refers s t e m not from the coercive
power of the court or from the B I A’s authority over the B and, but rather from separate federal laws and reg ulations, as w ell

as from tribal g overnin g d ocuments. See, e.g. , 42 C.F .R. Part 1 36 ( establishing g eneral pri n c i ples and prog ram requirements for the I ndian Health Service); I ndian Civil Rig hts Act (“I CRA”), 25 U.S.C. §§ 1301–03; I ndian Gaming Reg ulatory Act ( “I GRA”), 25 U.S.C. § § 2701 –2721

. Thus, althoug h the Memorandum O rder states that the Secretary is advising the B and “in complia n c e with the court’s order,” judicial authority is not the operative force behind any w eig ht the Secretary ’s words may carry

. Althoug h a sk e d to do so a f ter the Secretary issued his Memorandum Order, the d i s trict court did not compel the B I A to comply with the injunction as orig inally iss u e d

. B y d eny ing the Altos’ request to order the Secretary to p rov i d e relief bey ond that reflected in the Memorandum O rder, the
court acceded to the B I A ’s limited impl e m en tation of the preliminary injunction. I n practical e ffect, the district court’s acquiescence in the Secretary ’s p art i a l compliance with the injunction clarified the scope of the court’ s order. According ly

, the operative injunction, and the one subject to

our review, e n c o mpasses only the suspension of the implementation of the D isenrollment Order, which according
to t h e B I A’s Memorandum Order, will h ave certain impacts on the Altos and the B a

n d

.

The B and contends that even the suspension of the Disenrollment Order, as supplemented by the Memorandum Order, is bey ond the co u r t ’ s jurisdiction, because the Memorandum Order requi r es the B and to treat the Altos a s members and to provide them with the attendant rig hts a nd benefits. The tex t o f m o st of the Memorandum O rder,A L T O V

. B L A C K 19

however, does not substantiate those concerns. Disapproving the portions of the Memorandum Order t h a t “advise” a nd “notify ” the B and of the implications of temporarily restoring the Altos’ membership would have no e ffect on the Ba n d ’s leg al rig hts and oblig a ti o n s v i s-a-vis the Altos during the pendency of this suit. At this juncture, we therefore need not, and d o not, decide some difficult questions posed b y the injunction in its orig inal formulation.

The one ex ception to the limited nature of the Memorandum O rde r is the portion implementing the injunction that states: “I f the Alto descendants ultimately prevail in this litig ation, the B and must distribute the funds in the escrow account [ if o n e i s created for the p urpose o f holding all per capita g aming r eve n u es distributed to the Altos w hile this suit is pending ] to the A l t o descendants, including distribution to the minors’ trust fund a s set f o rth in the B and’s approved RAP.” T he injunction as a w h o l e, however, provides only preliminary r elief, while the l ang uag e just quoted specifies what is to happen not now, but “[ i] f the Alto descendants ultimately prevail.” This coercive directive therefore does not simply im p l ement the court’s order preserving the status quo pending its review of ag ency action.

W e shall remand for the purpose of allowing the district
court formally to clarify the orig inal injunction to conform to the understanding of the now-operative injunct i o n we have just artic u lated—namely

, as suspending the Disenrollment O r d e r w h ile this suit is pending and as d irecting the B I A t o implement that s u s p e n sion by advising the parties of its impact. The part of the M emorandum Order mandating distribution of escrowed funds if the Altos ultimately prevail
g oes bey o n d that limited role, and so should not be approved in the revised injunction.A L T O V

. B L A C K 20

The B an d ’ s jurisdictional arg uments, if accepted, would invalidate the injunction even as so clarified. W e therefore do not await the clarification but address the B and’s
arg uments now.

C. Subject Matter Jurisdiction

T h e B and moved both to dissolve the preliminary injunction and to dismiss cl a ims one throug h three on the
g round that this case presents n o federal question. I ts arg umen t i s t hat as the B I A’s d isenrollment decision turned solely on questions of tribal law and g overnance, there is no jurisdiction under the APA. W e disag ree.

1. The Motions to Dissolve and to Dism iss

As we have stated, we have jurisdict i o n to review the district court’s refus al to dissolve the injunction. 2 8 U .S.C. § 1292(a)(1). W e ty

pically would n ot h a v e j urisdiction on interlocutory

appeal to review the district court’s concurrent ruling on the B and’s motion to dismiss under Rule 12(b)(1). Here, however, the b asis asserted for dis s o l ving the injunction is lack of subject matter juri sdiction, the same issue that underlies the B and’s a

ppeal o f the denial of its motion to dismiss claims one throug h three for failure to state a federal question. See Meredith v. Oregon
, 321 F .3d 8 0 7
, 8 1 4 (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 analy sis, r eview o f the denial of the motion to dismiss claims one throug h three for lack of subje c t matter jurisdiction is properly “pendent” to our review of the dissolution motion. Id.A L T O V

. B L A C K 21

“W e review the district court’s ruling on s ubject matter jurisdiction de novo .” Chilkat Indian V ill. v. Johnson

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

2. T h e Propriety of A gency Action is a F ederal Question

The central issue in this suit concerns tribal membership and its attendant rig h ts and privileg e s. F ederal courts g enerally may not interfere with tribal enrollment d ecisions, “[ g ] iven the often vast g ulf between tribal traditions a nd those with which federal courts are more intimately familiar

. . . . ” Santa Clara Pueblo , 436 U.S. at 72 n.32 (citations omitted). B ecause “[ o] rdinarily [ ] federal courts lack jurisdiction t o consider an appeal from the decision of an I n d i an Tribe to disenroll one of its members,” Jeffredo v. Macarro
, 599 F .3d 913, 9 17 (9th Cir. 2010), we hav e r eg ularly declined to

ex e r cise jurisdiction over cases in w h i c h individuals a re seeking an o rder mandating B I A involvement in tribal enrollment decisions.

Lewis v. Norto n , f

or ex ample, r ejected the plaintiffs’ effort to “do an end run around tribal immunity ” by asking the court to order the Department of I n terior to decide in the first instance whether they should be enroll e d a s members and afforded a share in tribal g aming revenues. 424 F .3d at 963. To adjudicate such an a ction would require the court to evaluate the merits of the pla i n t i f f s’ claim to membership under tribal law—in effect, to review t h e tribe’s o wn determination and intervene in its actions v is-a-vis i t s o wn members. S

ee Alvarado

, 509 F .3d at 1016.

Here, however, the Altos d o not ask the federal court to decide a b initio whether the y meet the B and’s enrollmentA L T O V

. B L A C K 22

criteria. Rather, they

seek review under the APA’s arbitrary and capricious standard of the A ssistant Secretary ’s action in issuing the 2011 Disenrollment Order. And that action w a s trig g ered by the B and’s own request, not that of the putative tribal members.

W e h ave previously assumed, without e xp r essly deciding

, that we h ave jurisdiction to review ag ency action under the APA e ven when the ag ency a pplies tribal law. F or ex ample, Mo a p a B a nd of P a iute Indians v. U .S. Department of Interior
, 747 F .2d 563, 565–66 (9th Cir. 1984), applied APA
st a n dards to review the Secretary of the I nterior’s rescission of a tribal ordinance, pursuant to authority g ranted to him b y the tribal c o n s titution, without discussing federal question jurisdiction. Simila rly

, Baciarelli v. Morton
, 481 F .2d 610, 612 (9th Cir. 1973) ( per curiam), applied A P A s t andards to review the Secretary o f the I nterior’s reinstatement of a tribal council’s enrollment d e c i s i o n , w i t h o u t d i s c u s s i n g j u

r i s d i c t ion. These cases are not dispositive, because the present jurisdictional issue was not squarely addressed. See BurbankGlendale-Pasadena Airport Auth. v. City of B urban k

, 13 6 F

. 3d 1360, 1363 (9th Cir. 1998). B ut the cases a re persuasive authority that t h e e x e r cise of jurisdiction here is
proper.

W e said a bit more o n the subject recently in Cahto Tribe : “W e have jurisdiction to review final ag e ncy action, 5 U .S.C. § 704, a n d t h e B I A’s 2009 d ecision was final for the Department of the I nterior.” 715 F .3d at 1228 (citation omitted). 8 Al t h o ug h Cahto Tribe asserted this court’s

8 T h e i ssu e in Ca h to Trib e w as w h eth er th e B IA h ad j u risd ictio n , u n der th e trib e’ s g o v ern in g d o cu m en ts, t o rev iew an in d iv id u al’ s ap p eal f ro m a trib al d isen ro llm en t d ecisio n

. 7 1 5 F .3 d at 1 2 2 6

– 2 9

. T h e trib e in th at caseA L T O V

. B L A C K 23

j u r isdiction to review, under the APA, the B I A acti o n challeng ed in that suit, it did n ot ex plain why that jurisdiction

can ex tend to B I A act i o n t h at rests o n tribal law. 9 W e take the opportunity

to do so now.

co n ten d ed th at its A rticles of A sso ciatio n d o n o t p ro v id e f o r an ap p eal of

a d i sen ro llm en t d ecisio n t o th e B IA

. W e ag reed

. T h e B an d h as m ad e n o

su ch co n ten tio n h ere—u n su rp risin g ly

, as i t w as th e party t h at ap p ealed to th e B IA . A s th e B IA ’ s au th o rity to rev iew th e d isen ro llm en t

d ecisio n o f
t h e B an d’ s m em

b ersh i p co m

m ittee i s n o t in d isp u te, w e ag ree w ith t h e p arties th at th e B IA h ad j u risd ictio n t o i ssu e th e ch allen g ed Disen ro llm en t Ord er.

9 Co n sisten t w ith Mo ap a Ba n d

, Ba cia relli

, an d Ca h to Trib e , o th er circu its h av e ad

j u d icated A P A cau s es o f actio n in cases co n cern i n g In d ian af f airs. T h e Eig h th Circu it, f o r ex am p l e , asserted j u

risd ictio n o v er th e B IA ’ s d ecisio n s w

h eth er to reco g n ize trib a l g o v ern in g b o d ies f o llo w in g trib al electio n s, ev en

th o u g h th e reco g n itio n

d ecisio n u ltim ately tu rn s on trib al law

. S

ee Ru n s After v. U

n i t e d S t a t e s , 7 6 6 F.2 d 3 4 7
, 3 5 1 (8 th Cir. 1 9 8 5 ); Go o d

fa ce v. Gra s sr o

p e , 7 0 8 F.2 d 3 3 5
, 3 3 9 (8 th Cir. 1 9 8 3 ). T h e

co u rt w as caref

u l, h o w ev er, to lim it th e sco p e o f f ed eral j u risd i ctio n t o th e p ro p riety o f th e B IA ’ s actio n u n d er th e A PA
, n o t th e so u n d n ess o f th e B IA ’ s d ecisio n u n d er trib al law : “ [T h e] reso lu tio n o f su ch d isp u tes in v o lv in g q u estio n s o f in terp retatio n o f th e trib a l c o n stitu tio n an d trib al law is n o t w i th in th e j u risd i ctio n o f th e d istrict co u r t

. ” Ru ns After

, 7 6 6 F.2 d at 3 52 (citin g Gra ssro p e , 7 0 8 F.2 d at 3 3 8

– 3 9 & n .4 ).

T h e Seco n d C i r cu it sim i larly im p lied th at f

ed eral j u risd ictio n lies

w h ere p lain tif

f s s eek rev iew o f an ag en cy d ecisi o n c o n cern in g In d ian af f airs. S h en a n d o a h v. U.S

. Dep artmen t o

f In terio r , 1 5 9 F.3 d 7 0 8 (2 d Cir. 1 9 9 8 ), ex p la i n ed th at a f

ed eral co u rt lack s j u risd ictio n o v er an issu e of trib al law “ in th e a b sen ce o f an in itial determ in atio n b y th e [B IA ]
, ” im p ly in g th at w

h ere th ere is su ch an ag en cy d eterm in atio n , ev en an issu e th at in v olv es th e ap p licatio n o f trib al law m ay p ro p erl y co m e b ef ore a f ed eral co u r t

. I

d

. at 7 1 2 (em

p h asis ad d ed ) (citin g Gra ssro p e an d Ru n s After ). A n d th e Fed eral Circu it h as n o ted th at, acco rd in g t o th e In terio r B o ard o f In d i an A

p p eals, “ [d ]ecisio n s o f th e B IA m ad e at th e l ev el of A ssistan t Secretary o r ab o v e, are ap p aren tly rev iew ab le in d istrict co u rt.” Ka w Na t io n v. No rto n , 4 0 5 F.3 d 1 3 1 7 , 1 3 2 5 n .1 0 (Fed . Cir. 2 0 0 5 ).A L T O V

. B L A C K 24

Here, the Assistant Secretary issued the cha lleng ed Disenrollment Order in his official capacity as a manag e r o f I ndian affairs under 25 U.S.C. § 2, a nd in response to t h e B and’s appeal. Current fede ra l reg ulations, c odified at 25 C

. F .R. §§ 62.1–62.12, provide procedures f or “filing a n d processing of appeals from adverse enrollment a ctions by [ B I A] officials,” § 62.2, s u c h as the Reg ional Director’s decision the B and appealed here, and ex pressly p ermit tribal committee s to f

ile a ppeals, see § 62.4(b), as the B and’s committee did here. Those reg u lations make clea r t h a t the ch al l e ng ed Disenrollment Order is “final ag ency action” within the meaning of the APA, 5 U.S.C. § 704. See § 62.11.

Moreover, t h e Assistant Secretary ’s resolution of the enrollment dispute was consistent with the authority vested in him by Article I I I
, section 2 of the B and’s Constitution. The 1960 Reg u lations specifically re quired the Secretary to approve the deletion of individuals members’ names from the B and’s roll, see 25 C.F .R. § 48.14(d) (1960). So the B and’s
current Constitution, which ex pressly inco r p o rates those
reg ulations, does so as well. And, b y reason o f that same incorporation, the Secretary ’s d e c ision is not “committed to ag ency discretion by law,” 5 U.S.C. § 701(a)(2). Rather, the Secretary must apply the tribe’s o wn enrollment criteria, a nd is required to identify the information relied u pon in reaching his decision. See 25 C.F .R. §§ 62.10–62.11.

The APA provides that “[ a] person suffering leg al wrong because of ag ency

action, or adversely

affected or ag g rieved by ag ency action within the meaning of a relevant statute, is entitled to judicial review thereof.” Darby v. Ci s n eros , 509 U.S. 137, 146 (1993) (quoting 5 U.S.C. § 702). A PA § 704, in turn, specifically provides f or judicial review o f f i nal ag ency action “for w hich there is no other adeq u a t eA L T O V

. B L A C K 25

remedy in a c ourt.” 5 U

. S

. C

. § 704. As these provisions reflect, Cong ress’s understanding in passing the APA was that “judicial review should be widely available to challeng e the actions of federal administrative officials.” Califano v

. Sanders

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

a “strong presumption that Cong ress intends judicial r eview of administrative a ction.” Bowen v

. M ich. Acad. of Family Physicians

, 4 76 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 n ot affect our jurisdiction o v er an APA challeng e to the B I A’s decision. “[ I ] t is common g round that if review is
p roper under the APA, the District Court ha[ s] jurisdicti o n 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) ( h o l d i ng that § 1331 confers jurisdiction over a suit that “arises under” a “rig ht o f action” created by the APA); Runs After

, 7 6 6 F.2d at 351 (citing Grassrope
, 708 F .2d a t 338). The federal question for § 1331 purposes is whether the B I A violated the APA; that it is claimed to have done so in a case involving application o f tribal law does not matter, any more than it would matter to § 1331 jurisdiction over an APA c a s e involving an issue o f state law.

South Delta W

ater Agency v. U.S. D epartment of I nterior, Bureau of R e c l a mation
, 767 F

. 2d 531 (9th Cir. 1985), for

ex a mple, affirmed § 1331 jurisdiction to review, under the APA, the federal g overnment’ s operation of a water project in a manner that a lleg edly violates state law. That case reasoned that “[ s] tate law

. . . adequately constrains the federal defendants’ rig h ts by providing ‘law to be applied,’”

u n d er 5 U.S.C. § 706, so “ therefore, review is proper un d e rA L T O V

. B L A C K 26

t h e A PA.” Id. at 539. Similarly

, here, the Ba n d ’s Constitution, and the 1960 Reg ulations incorporated therein, constrain the Secretary ’s actions by p roviding the “law to be applied,” such that review under the APA is proper.

The A ltos’ first three causes of action all concern the

m a nner in which the Assistant Secretary ex ercised hi s authority to review the B and’s enrollment determination. Claims one throug h three therefore b oth seek review of final
ag ency action and raise a fed er a l q uestion under the APA, over which we have jurisdiction.

I n sum, we have jurisdiction over the Altos’ challeng es to the B I A’s d etermination of the tribal enroll m ent decision. The district court properly d eclined to dissolve the injunction and to dismiss the c a se o n subject matter jurisdiction g rounds.

D. Rule 19 Required P arty Analysis

W e t u rn nex t to the B a

nd’s a lternative contention—that it is a required p a

r ty w ith r eg ard to claims one, two, a nd three, so that preliminary injunctive relief as to those c laims could not be g ranted in its absence.

J oinder is n ot itself jurisdictional. See W ilbur 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). I n this case, h owever, j o i n der of the B and, if required, would in turn raise s o vereig n immunity questions
reg arding the propriety of a ny adjudication of th e Altos’ claims. I f the B and is a required party for the causes o f action und e rly ing the injunction, then the propriety of the relief
g ranted by the district court depends

, f irst, on whether the B and’s joinder would be preclu d e d by tribal sovereig nA L T O V

. B L A C K 27

immunity

, which the B and has invoked, see, e.g. , Maxwell v

. Cnty. of San Diego
, 708 F .3d 1075, 1086 (9th Cir. 2013); a nd second, if so, whether the court can “ in equity a n d g ood

c o nscience” proceed to adjudicate those claims without t h e B and. See F e d. R. Civ. P. 1 9(b); see also W ilbur

, 423 F .3d at 1114–15 ( apply ing the Rule 19(b) f a ctors to a sovereig n tribe).

Moreover, the Rule 19 inquiry would, if resolved in the B and’s favor, result in disso l v ing the injunction. There would then b e no likelihood of success on the merits. Yet, th e Ba nd had no opportunity fully to litig ate that issue until permitted to intervene for limited p urposes. T h us embedded i n the Rule 19 issue in this c a se is a quasi-jurisdiction al issue—sovereig n immuni t y —as to which the affected party

wo u l d ordinarily be e ntitled to appeal denial of a motion to dismiss. See Terenkian v. Republic of Iraq
, 694 F. 3 d 1122, 1131 (9th Cir. 2012) (citing Phaneuf v. Repub l i c of Indon.

, 106 F

. 3d 3 02, 304 ( 9th Cir. 1997)); Doe v. Holy See
, 557 F .3d 1066, 1074 (9th Cir. 2009) ( p er curiam). Revie w o f the B and’s Rule 19 arg uments as they pertain to the c laims covered by the preliminary injunc t i o n is therefore properly before us.

W e review the district court’s denial of the B and’s Rule 19 motion for abuse of d i s cr etion, but review the leg al conclus i o ns underly ing that determination d e novo

. Salt River Project Agric. I

mprovement & Power Dist. v. Lee
, 672 F

. 3d 1176, 1179 ( 9th Cir. 2 012); see also Disabled Rights Action Comm. v. Las Vegas Events, Inc.
, 375 F .3d 861, 879 (9th Cir. 2004).

T h e f i r st step in compulsory joinder analy sis is to determine whether the B a nd is a required party to the action.A L T O V

. B L A C K 28

J o i nder of the B and is “required” if e ither: ( 1) the cour t cannot accord “complete relief among ex isting parties” in the B and’s absence, or (2) p roceeding with the suit in its absence will “impair o r impede ” the B and’s ability to protect a claimed leg al interest relating to the subject of the action, or “leave an ex isting party s u b j e c t to a substantial r isk o f incurring double, multiple, or otherwise inconsistent oblig ati o n s b ecause o f the interest.” F ed. R. Civ. P. 19(a)(1)(A)–(B ); Shermoen v. United States
, 982 F .2d 1312, 1317 ( 9th Cir. 1992). W e ex amine each factor in turn. Only if w e d e t ermine that the B and is a required party do we proceed to the second Rule 19 i n quiry : whether joinder is feasible, or is barred by sovereig n immunity

. F inally

, only if joinder is impossible must we d etermine whether, in “equity and g ood conscience,” the suit should be dismissed. See F ed. R. Civ. P. 19(a)–(b); E E OC v. Peabody W

. Co al Co.
, 400 F .3d 774, 779–80 (9th Cir. 2 005); Dawavendewa v. Salt River P roject Agric. Improvement & P o w er Dist.
, 2 76 F .3d 1150, 1 155 (9th Cir. 2002) ( quoting Con f e derated Tribes of Chehalis Indian Reservation v. Lujan
, 9 2 8 F. 2 d 1496, 1498 (9th Cir. 1991)); Makah Indian Tribe v. V erity
, 910 F .2d 555, 558 ( 9th Cir. 1990). This determination is necessarily factand circumstance-specific. Confederated Tribes

, 928 F

. 2 d at 1498.

As w ill appear, we res o l v e the Rule 19 q uestion at step

one.

1. Com plete Relief

Com p l e t e relief “is concerned with consummate rather than par t i a l or hollow relief as to those already parties, a nd with precluding multiple lawsuits on t h e same cause o f

a c t i on.” Disabled Rights

, 375 F .3d at 879 (citations a n dA L T O V

. B L A C K 29

internal quotatio n m a r k s omitted). T o be “complete,” relief
must be “ meaning ful relief a s between the pa r t i e s .” Id. (emphasis added).

Ruling for the Altos on any or all of their first three claims would mean vacating the D i s enrollment Order and, unless determined to be barred by res judicata (as the Altos maintain in their first claim for relief), remanding to the B I A for redetermination of the Altos’ enrollment status. That relief is “meaning ful” as between the Alto descendants a nd the B I A, even if it does not bind the Tribe directly

.

I n several p ast cases involving Rule 19 motions b y I ndian tribes, we h a v e held it impossible to afford complete relief because the court’s judg ment would n ot bind the a bsent tribe. See, e .g. , Dawavendewa

, 276 F .3d at 1155–56; Confederated Tribes

, 928 F

. 2d at 1498. I n those cases, however, the injury complained of was a result of the absent tribe’s act i o n, not only or p rincipally that of the named ag e ncy defendant. Such is not the case here with respect to th e A l t o s ’ first three causes of action.

I n Dawavendewa

, f

or e x ample, the p laintiff challeng ed a provision o f a lease ag reement between the defendant power

c o m p any and the Navajo Nation, the lessor of the land on which the company oper a t e d a facility

. See 276 F .3d at 1153–54. The provision required the power company to g ive members of the Navajo tribe preferential treatment in hiring

. Id. at 1153. W e held that the Navajo Nation was a necessary party to the suit because the c ourt could not a ssure the
p l a i n t i ff h i s r e q u es t e d r e l i e f

— e m p l o y

m e n t b y t h e defendant—in the Nation’s absence. Even if the court ruled in the plaintiff’s favor a n d enjoined the defendant–lessee from a pply ing the challeng ed lease condition, the tribe couldA L T O V

. B L A C K 30

still “ move to enforce its r ig hts under the lease and ultimately evict the employ er from the reservation,” Disabled Right s , 375 F .3d at 880 ( d iscussing Dawavendewa ), and insist on enforcing t h e provision with a new lessee. See Dawavendewa , 276 F .3d at 1155–58.

W e reached a similar conclusion in Confederated Tribes. There, a g roup o f I n dian tribes broug ht suit to en j o i n the federal g overnmen t from neg otiating with the Quinault N a tion as the sole g overning authority for the Quina u l t Nation I ndian Reservation, requesting a declaratory judg ment reje c t i ng the Quinault Nation’s ex clusive g overning status. 928 F

. 2d at 1497. B ut the p laintiffs did not name the Nation

as a party

. We concluded that joinder of the Q uinault Nation

was necessary becau s e a judg ment ag ainst the federal defendants would n ot bind the Nation, which could continue
to “ a ssert sovereig n powers a nd manag ement responsibilities

over the r eservation,” the very practice t h at prompted the plaintiffs’ complaint. Id. a t 1498.

Here, in c ontrast, the injury complained of i n the first three causes of action is the B I A ’ s violation of the APA in
carry ing out a responsibility delega ted to it by the B and, under the B and’s own Constitution. The injury r esulted from the Secretary ’ s actions in ruling the Altos inelig ible for tribal membership, not from the B and’s prior a ctions with reg ard to the membership issue. Vacating or reversing the Disenrollment Order, and remanding if n ecessary for rehearing

, would afford the Altos complete re l i e f as to their first three causes of action

. W e may assume that the B a nd will then abide by the B I A’s decision, as it is c o m m i t t ed b y its own Constitution to do, and will also, consistently with its Constitution, provide the Altos w ith the various requisites o f membership.A L T O V

. B L A C K 31

Should that not o ccur, then questions reg ard i n g the availability of furth er B I A and judicial enforcement will arise. Some of those questions may be addr essed, o r anticipated, in the fourth and fifth causes o f action in the Altos’ F irst Amended Complaint. B ut as we have ex plained, those causes o f action a

re not presently before us. As to the three causes of acti o n t hat are before us, complete relief—that is, relief limited to that available in an APA cause of action, which is affirmation, reversal or rema nd of the
ag ency action—can be provided b etween the parties. T h e practical implications of the Secretary ’s decis i o n for the Altos’ entitlement to tribal r ig hts and b en e f i ts hing e not on any c o urt order, but on the B and’s leg a l duties to its members, under its own g overning documents and applicable federal law.

I n short, the Tribe’s absence d oes not preclude “complete relief” as to the Altos’ first three causes of action.

2. Pr otection of Legal Interests and Avoidance o f Inconsistent Obligations

T h e second factor in determining whether an abs e n t party ’s joinder is required “focus es o n whether the absent party ’s p articipation is necessary to protec t i ts leg ally
cog niz able interests or to protect o ther parties from a substantial risk of incurring multiple or inconsi s t e n t oblig ations because of those i n terests.” Disabled Rights

, 375 F .3d at 880; see also F e d

. R. Civ. P. 19(a)(1)(B )(i) & (ii). The B and a sserts interests i n e n s u ring that o nly qualified indivi d u a l s are enrolled and in maintaining its sovereig nty over membership matters.A L T O V

. B L A C K 32

“As a practical matter, an absent party ’s ability to protect its interest will not be impai r ed by its a bsence from the suit where its interest will b e adequately represented by ex isting
p a r ties to the suit.” W

ashington v. Daley

, 173 F .3d 1 1 5 8
, 1167 (9th Cir. 1999). W e consider

three factors in d e termining whether ex isting parties adequately represen t the interests o f
t h e a bsent tribes: whether ‘the interests of a present party t o the suit are such that it will

u n d o ubtedly make all’ of the absent party ’s
arg uments; whether the party i s ‘capable o f and willing to make such arg uments’; a nd whether the absent p arty would ‘offer any necessary element to the p roceeding s’ that the present parties would neg lect.

Shermoen

, 982 F

. 2d at 1318 (quoting Cnty

. o f Fresno v

. Andrus

, 6 22 F .2d 436, 4 39 (9th Cir. 1980)). Apply ing those factors, we conclude that the B and’s in terest in limiting enrollment to qualified individuals is a dequately represented by the B I A

.

F irst, the United States shares wi t h the Tribe an interest in defending the Assista n t S ecretary ’s Disenrollment O rder, which g ranted precise l y t he relief the Tribe soug ht when it

a p pealed to the B I A. The B I A has, to date, vig or o u s l y defended its Disenrollment Order on its merits. T he B a nd has
not presented any arg uments that it would offer in defense o f the Order which the B I A has not or would not make.

S e cond, c onsistent with its fiduciary responsibility t o I ndian tribes, the B I A has repeatedly avowed its intention a nd ability to represent the B and’s interests with respect to theA L T O V

. B L A C K 33

APA asp e c t s o f the complaint, claims one throug h three. “[ T] he federal g overn m ent, including the Secretary
, has a trust responsibility t o the Tribe[ ] ,” a s a trustee, which “oblig ates t he Secretary to protect the T ribe[ ’s] interests in this matter.” Daley , 173 F .3d at 1168.

To be sure, conflicts can arise between the United States and an I ndian tribe; when they do, the g overnment cannot adequately represent the tribe’s interests. Id. at 1167. B ut no such conflict has surfaced to this point in this case, a s t he district c ourt, and now this court, has addressed o n l y c laims

one throug h three in the Altos’ c o m p l a int. The Assistant Secretary is defending the very order requested by the B and, which strips the Altos of their status as members of a federally recog niz ed t r i be. I t cannot be said that the Secretary ’ s trust oblig a tions to the B and are at odds with the B I A’s oblig a tions to the Altos, whose membership the B a nd contests. As the B I A points out:

[ I ] t is inherent in the process the Tribe created in its Constitution for the deter m i nation o f

m e m b e r s h i p i n t h e T r i b e , a n d t h e disenrollment of members whos e enrollment

was based on inaccurate information, that the final decision maker, the Secretary o f the I nteri o r , have fiduciary d uties to both the Tribe and any I ndians whose membership in the Tribe is in dispute. Since those duties did
not deter the Tribe from making the Secretary of the I nterior the final decision maker, they should not prevent him from defending his decision.A L T O V

. B L A C K 34

F inally

, because the court’s review of th e Disenrollment Order is limited to the administrative record before the B I A
, see Fence Creek Cattle C o

. v. U.S. Forest Serv.
, 602 F .3d 1125, 1131 ( 9th Cir. 20 1 0 )

, the Tribe could n ot offer new evidence in the judicial proceeding s that would mater i a l ly affect the outcome of claims one throug h three.

The B and also points to a d ispute over the interpretation of tribal law as evidence that the United State s ca n n o t adequately represent its interes ts. Specifically

, the Tribe maintains that the Disenrollment Order took immediate effect upon issuance, whereas the district court concluded (and the B I A initiall y a r gued) that the Altos would retain their membership status until the Secretary of the Department o f I nterior approves a revised membership roll for the B and, on which the Altos’ names do n ot appear. 1 0 B ut the a bility of the district c ourt to afford complete relief o n the Altos’ first three claims does not turn on the resolution of this dispute.

I f the D isenrollment Order is invalidated and the case remanded to the ag ency , then the e f fe ctive date of the order will be of no c onsequence: the A ltos would have re mained

mem b e rs of the Tribe throug hout the pendency of this dispute, and would be entit l e d t o any attendant benefits a s provided in the tribe’s g o verning d o cuments and applicable federal law. I f, on the other hand, the Disenrollment Order is upheld, then questions concerning the date of the Altos’ disenrollment can be a ddressed by the appropriate body o r bodies, whether that be the Ba n d a lone or the B and with an appeal to the B I A

. F inally

, during the pendency of this litig ation, u nder the district c o u rt injunction as clarifie d a nd

10 T h e A lto s’ f

i f th cau se o f actio n seek s a d eclarato ry j u d g m en t to th is ef f ect.A L T O V

. B L A C K 35

implemented by the Memorandum Order, any disenrollment date d o es n o t matter, a s the Disenrollment O rder is inoperative.

A s to the B and’s leg al interest in maintaining sovere i gn control over membership issues, g ranting the relief requested in claims one throug h three—vacatur of the B I A ’s Order—would n ot u ndermine authori t y t he Tribe would otherwise e x ercise. The Tribe itself has deleg ated its authority over enrollment to the B I A. See Const

. of B and,
art. I I I
, § 2. The Altos do n ot seek to alter the B and’s rig hts vis-a-vis e nrollment decisions. A ny attempt to do so in the B and’s absence would c learly be impermissible. S ee Pit River Home & Agric. Coop. Ass’n v

. U n i ted States
, 30 F .3d 1088, 1099 (9th Cir. 1994) (holding that a tribal council was

a necessary p arty in a suit c h a l l eng ing the council’s desig nation by the Secretary of I nterior as the beneficiary o f reservation property

) ; Confederated T

r i b es , 928 F .2d at 1498–99 (holding the Q uinault Nation a necessary party in a suit challeng ing the United States’ recog nition of the Nation

as the sole g overning authority of a r eservation). Rather, temporarily making the D isenrollment Order unenf o r ceable is akin to stay ing removal in the immig rat i on contex t; it “operates only upon the

. . . proceeding itself,” and does not impose a coercive o r d e r on any sovereig n entity

. Cf. LeivaPerez v

. Holder

, 640 F. 3 d 962, 966 ( 9th Cir. 2011) (per curiam) (citation and internal quotation marks omitted).

I n sum, complete r elief can b e afforde d i n t h e B and’s absence a s to the Altos’ c laims reg arding the propriety of the Assistant Secretary ’s Disenrollment Order. B ecause the Tri b e i s not a necessary party to the first three causes o f action, the distr i c t court did not err in declining to decide whether tribal sovereig n i m m u nity bars the B and’s joinder,A L T O V

. B L A C K 36

and if so, whether the action should be dismissed under Rule 19(b).

E. The Motions to Dism iss Claim s F our and F ive

The B and urg es us to review the disposition of its motions
to dismiss the f

o u r t h and fifth causes of action. B u t as the distri c t court made clear in the order under review, the clarified p reliminary injunction does not rest on the Altos’ fourth and fifth claims. 1 1 Determining whether the court has subject matter jurisdiction ov e r claims four and f ive, o r whether the B and is a required party to those claims, is therefore not necessary to our review of the order refusing to dissolve the i njunction. Consequently

, our pendent jurisdiction d oes not ex tend to the B and’s motions to dismiss those claims.

Nor do the B and’s motions on claims four and five independently fall under the collateral order aspect of the final judg ment rule. The collateral o r d er doctrine, first articulated in Cohen v. Beneficial Indus trial Loan Corp.
, 337 U.S. 5 41, 546–47 ( 1949), p ermits review as if they were final decisions of a “small class” of orders that: “(1) conclusively

determine the disputed question; (2) r esolve an important issue completely separa te from the merits of the action; and (3) would effectively b e unreviewable on appeal from a final judg men t.” Rodriguez v. Lockheed Martin

11 T o t h e d eg ree th at t

h e A lto s’ f

o u rth an d f if th claim s seek f

u rth er relief b ey o n d th e clarif

ied in j u n ctio n o n a d if

f eren t leg al b asis—n am ely

, th at th e B IA h as a f

id u ciary d u ty to en su

re th eir access t o trib al rig h ts a n d b en ef its—th e d istrict co u rt h as n o t ad d ressed t h at leg al q u estio n , so th ere is n o p en d en t

issu e b ef o re u s.A L T O V

. B L A C K 37

C o rp. , 627 F .3d 1259, 1 264 (9th Cir. 2010) (citatio n , alterations, and internal quotation marks omitted).

The district c ourt’s order deferring adjudication of the B and’s motion to dismiss the Altos’ fourth and fifth causes o f action does not satisfy the f i rst of these criteria. “An order deferring a ruling is not c o nclusive.” Miller v. Gammie
, 335 F .3d 889, 895 (9th Cir. 2003) (en b anc). Moreover, even if we w ere to construe the di s t r i c t court’s deferred ruling on t h e motion reg arding claims four and five a s a d ecis i o n declining to dismiss, as the B and asks us to d o , we would not have jurisdiction to review that d ecision now. The denial of the B and’s Rule 12(b)(1) motion to dismiss cl ai m s f our a nd five for lack of subject matter jurisdiction i s n ot appealable under the collateral order d octrine. S e e Catlin v. United States , 324 U.S. 229, 236 (1945); Kwai Fun W ong v. United States
, 373 F .3d 952, 960 (9th Cir. 2004); Unite d S t a tes v

. Atwell

, 681 F

. 2d 593, 594 (9th Cir. 1 9 8 2 ) (citing United States v. Layton , 645 F .2d 681, 683 (9th Cir. 1981)).

Nor is the denial of the B and’s Rule 12(b)(7) motion to dismiss those claims for inabilit y t o j o in a required party under Rule 19 among the narrow class of ruling s collaterally appealable. One crite r i o n for application of the collateral order doctrine is that the order “w o u l d e ffectively be unreviewable on appeal from a final judg ment.” Rodriguez

, 627 F .3d at 1264. Courts can, a n d do, effectively review a nd

co rr e c t Rule 19 d ecisions a fter final judg ment, including b y ordering d ismissal at that point of the lawsu i t, as otherwise appropriate, if a required p a r ty c annot be joined. See, e.g. , Provident Tradesmens Bank & Trust Co. v. Patterson
, 390 U .S. 102, 110–12 (1968) (con s i d ering a party ’s indispensability under Rule 19(b) on a n appeal from a final judg ment); Universal Reinsurance Co. v. S t. Paul Fire &A L T O V

. B L A C K 38

M a r i n e I ns. Co.
, 312 F .3d 82, 87–89 ( 2d Cir. 2002) (same) ; United S tates v. San J

uan Bay M

arina
, 239 F .3d 4 0 0, 405–07 (1st Cir. 2001) (same); Gardiner v. V .I. W a t e r & P ower Auth.

, 145 F .3d 635, 6 40–43 (3d Cir. 1998) ( same). Althoug h

n o Ninth Circuit opinion so states, other circuits have h e l d that a Rule 19 determi n a tion is not immediately appealable, because it can be reviewed after a final judg ment. See, e.g. , Crowe & D u n l evy, P.C. v. S tidham

, 640 F .3d 1140, 1148 (10th Cir. 20 1 1 ) ; M

a sterCard Int’l Inc. v. Visa I nt’l Serv. Ass’n
, 471 F .3d 377, 383–84 (2d Cir. 2006); Pric e v. J & H Ma r s h & McLennan, Inc.
, 493 F .3d 55, 63 (2d Cir. 2007). W e find the reasoning of these cases persuasive, and so hold as well.

W e recog niz e that the district cou rt ’s d e nial of a motion
to dismiss on g rounds of sovereig n immunity is immediately appealable u nder 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 B and been named a s a party and then moved to dismiss the suit on g rounds o f tribal immunity

, the district court’s denial of s uch a motion o r refusal to rule on it would b e subject to interlocutory appeal. B ut that ex ception does n o t apply here. The B and’s immunity arg ument is of a second order; we would reach it only if we first r e v e r sed the district court’s determination under Rule 19(a) that t h e Band w as not a required p arty for claims fo u r a n d five. B ut as those claims are not presently before us, we have no reason to reach that ques t i o n. A nd unless and until the B and is determined to be a required party for purposes of claims f

our and five, the sovereig n immunity issue does n ot arise. T he i m m u nity issue reg arding c laims four and five is therefore premature, and we may not reach it, via the collateral order doctrine or otherwise.A L T O V

. B L A C K 39

I n sum, we lack juris diction at this stag e to r eview whether the Altos’ fourth and fi f t h claims should be dismissed under either 12(b)(1) or 12(b)(7).

III. CONCLUSION

The district court properly ex ercis e d subject matter jurisdiction over the Altos’ claims challe n g ing the ag e ncy ’s final a ction a n d c o rrectly c o ncluded that the B and is not a required party to the r e solution of those claims. A c cording ly

, the B and has demonstrated no basis for dissolving the preliminary injunction presently in effect, as articulated in the B I A’s Memorandum Order.

F or the foreg oing r easons, we A F F I R M the district court’s denial of the B and’s motion t o dissolve the preliminary injunction as limited by the B I A’s Memorandum O r d e r , prohibiting the B I A from g iving effect to the Disenrollment Order pending adjudication o f t h i s suit. B ut

we REMAND to a llow the district c o urt f o rmally to c larify the orig inal injunction to conform with the understanding of the injunction we have d escribed. W e likewise AF F IRM the denial of the motion to dismis s claims one throug h three o f the Altos’ F irst Amended Complaint. F inally

, we DISMISS for lack of jurisdiction the B and’s appeal as to its motion to the dismiss claims four and five.

AF F IRMED IN P ART, DISMISSED IN P ART, AND REMANDED.