FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PEARL ALVARADO; ELISHIA ARENAS; 

MARIO ARENAS, JR.; DANNY

DANIELS; KATHLEEN DAVIS; CHREYL

DURAN; JEANINE GONZALES; DIANE

GRIGSBY; WAYNE GRIGSBY; PAULA

GUTIERREZ; CHAD ELLIOTT LEWIS;

CHERYL LEWIS; CLIFFORD LEWIS;

DONALD LEWIS; JERRY LEE LEWIS;

KATHY LYNNETTE LEWIS; KEVIN

LEWIS; LARRY PAUL LEWIS, JR.;

LISA LEWIS; LOUELLA LEWIS;

REGINA LEWIS; TRINA LEWIS-DAVIS;

CARL MEKEALIAN; CONNIE No. 06-15351 MEKEALIAN; JENNIFER MEKEALIAN;

LORI D.C. No. MEKEALIAN; MIKE MEKEALIAN;  YVONNE MEKEALIAN; ALEX CV-05-00093-MHP

MONTGOMERY; CLIFF MONTGOMERY; OPINION

FRANCINE MONTGOMERY; VINCENT

MORENO; VALENTINA OLIVER;

DARREN SORONDO,

Plaintiffs-Appellants,

v.

TABLE MOUNTAIN RANCHERIA, doing

business as Table Mountain

Rancheria Association; LEWIS

BARNES; WILLIAM WALKER; AARON

JONES; CAROLYN WALKER; TWILA

BURROUGH; LEANNE WALKER

GRANT; CRAIG MARTINEZ; 

15357
ROBBIE CASTRO; RAY BARNES; 

VERN CASTRO; DIRK KEMPTHORNE,*

in his official capacity as the  Secretary of the Dept. of Interior;

UNITED STATES OF AMERICA,

Defendants-Appellees. 

Appeal from the United States District Court

for the Northern District of California

Marilyn H. Patel, District Judge, Presiding

Argued and Submitted

October 16, 2007—San Francisco, California

Filed November 29, 2007

Before: Arthur L. Alarcón, David R. Thompson, and

Richard C. Tallman, Circuit Judges.

Opinion by Judge Alarcón

*Dirk Kempthorne is substituted for his predecessor, Gale Norton, as

Secretary of the Department of Interior, pursuant to Fed. R. App. P.

43(c)(2). 

15358 ALVARADO v. TABLE MOUNTAIN RANCHERIA
COUNSEL

Brian C. Leighton, Clovis, California, for the appellants. 

Paula M. Yost, Sonnenschein, Nath & Rosenthal, San Francisco, California; Timothy S. Jones, Sagaser, Franson &

Jones, Fresno, California; Sue Ellen Wooldridge, Assistant

Attorney General, United States Department of Justice, Washington, D.C., Katherine J. Barton, (argued), David B. Glazer

and Elizabeth A. Peterson, Department of Justice Environment & Natural Resources Division, Washington, D.C., for

the appellees.

OPINION

ALARCÓN, Circuit Judge: 

Appellants appeal from the district court’s order dismissing

their complaint for lack of subject matter jurisdiction. Appellants are individuals who unsuccessfully petitioned the Table

Mountain Tribal Council for admission to the Table Mountain

Rancheria, an Indian tribe. Their complaint sought an order

compelling the Table Mountain Rancheria to admit them as

members. The district court concluded that it lacked subject

matter jurisdiction over Appellants’ claims because this case

was indistinguishable from those in which tribal immunity

precludes federal court jurisdiction over tribal membership

ALVARADO v. TABLE MOUNTAIN RANCHERIA 15361
disputes. In so holding, the district court rejected Appellants’

attempts to establish subject matter jurisdiction. 

Appellants contend that this case is distinguishable from

those in which tribal immunity precludes jurisdiction. They

claim that immunity does not apply because their claims do

not involve tribal membership disputes. Instead, they purport

to assert a collateral attack on the judgment in Table Mountain Rancheria Association et al. v. James Watt, Secretary of

the Interior, No. C-80-4595-MHP. Also, they argue that the

district court had subject matter jurisdiction by virtue of its

ancillary authority to enforce the Watt settlement agreement,

and that the tribal Appellees’ immunity is waived because of

their participation in Watt. In passing, Appellants assert that

the district court had jurisdiction pursuant to 28 U.S.C.

§ 1346. 

We have appellate jurisdiction over this timely appeal from

the district court’s final judgment pursuant to 28 U.S.C.

§ 1291, and affirm the judgment of dismissal. The district

court properly concluded that it lacked subject matter jurisdiction to order Appellees to admit Appellants as members of the

Table Mountain Rancheria. We do not reach the issue of

whether tribal immunity defeats Appellants’ claims. Appellants’ subject matter arguments suffer from a more fundamental flaw: Appellants have failed to establish that the district

court has subject matter jurisdiction over their causes of

action even if the Table Mountain Rancheria is not immune

from suit. 

I

In or around 1916, the United States purchased a parcel of

land in Fresno County, California from private individuals,

and thereafter held the land in trust for the Table Mountain

Band of Indians. The land became known as the Table Mountain Rancheria (“TMR”), and was considered an Indian Reservation and “Indian Country” within the meaning of 18 U.S.C.

15362 ALVARADO v. TABLE MOUNTAIN RANCHERIA
§ 1151.1

 Rancheria residents were recognized as Indians for

purposes of federal law. 

On August 18, 1958, Congress enacted the California Rancheria Act, Pub. L. No. 85-671, 72 Stat. 619 (1958). The Rancheria Act, inter alia, authorized an exchange of title to

Rancheria assets, and a promise that the Bureau of Indian

Affairs (“BIA”) would continue to provide essential benefits,

such as irrigation and educational programs to Rancheria residents, if, in return, the TMR voluntarily relinquished its trust

status, and the TMR’s residents forfeited their Indian status.

A proposed plan for distribution of Rancheria land, drafted

pursuant to the Rancheria Act, divided the Rancheria into parcels, most of which were to be conveyed to individual Rancheria residents. The remaining parcels were earmarked for

the Rancheria water system, and were to be conveyed to a

legal entity formed solely to receive the remaining parcels.

Sometime after July 31, 1959, the proposed plan was

approved. As a result, the Rancheria assets were distributed to

the Table Mountain Rancheria Association (“TMRA”)2 and

individual residents. In addition, the Rancheria lost its trust

status, and its residents lost their Indian status. 

In 1980, the TMRA, several individuals who had forfeited

their Indian status in return for Rancheria assets, along with

1

“[T]he term ‘Indian country’ . . . means (a) all land within the limits

of any Indian reservation under the jurisdiction of the United States Government . . . , (b) all dependent Indian communities within the borders of

the United States whether within the original or subsequently acquired territory thereof . . . , and (c) all Indian allotments, the Indian titles to which

have not been extinguished, including rights-of-way running through the

same.” 18 U.S.C. § 1151. 

2The Table Mountain Rancheria Association is described as “the governing body of the American Indian Tribe, Band, or Community consisting of the Indians and their descendants and/or Indian successors in

interest for whose benefit the United States of America acquired and created the Table Mountain Rancheria.” 

ALVARADO v. TABLE MOUNTAIN RANCHERIA 15363
several dependent members of their families, filed a putative

class action, entitled Table Mountain Rancheria Association

et al. v. James Watt, Secretary of the Interior, et al., No. C80-4595-MHP (“Watt”), in the United States District Court

for the Northern District of California. The Watt complaint

named Clarence Jones, Lester Burrough, E.B. Barnes, Lewis

Barnes, and William Walker as plaintiffs,3 and the Secretary

of the Interior, the Secretary of Health and Human Services,

and the United States, as defendants. 

The named plaintiffs in the Watt action sought to certify

two classes: 

persons named in the distribution plan as distributees

of [TMR] assets . . . , or the[ir] Indian heir(s),

assign(s), executor(s), administrator(s), or successor(s) in interest . . . who, by reason of having been

named as distributees . . . were . . . considered by the

[federal] government . . . to have lost their status as

Indians under [federal law]; 

. . . 

all Indian persons, other than distributees, who were

named in the [TMR] distribution plan as dependents

of distributees, and who, for that reason, were . . .

deemed by the United States . . . to have lost their

status as Indians under [federal law]. 

On April 11, 1983, the district court certified both classes. 

The Watt plaintiffs alleged that the defendants failed to

inform the Rancheria residents who approved the distribution

3The Watt complaint identifies plaintiffs Clarence Jones, Lester Burrough, E.B. Barnes, Lewis Barnes, and William Walker as “persons

named in the final plan for the distribution of the assets . . . of the [TMR]

. . . as being distributees . . . of the assets of said Rancheria.” 

15364 ALVARADO v. TABLE MOUNTAIN RANCHERIA
plan of “the obligations of the United States under the Rancheria Act, the relative advantages and disadvantages of

accepting termination, the options available to them under the

Rancheria Act and the legal consequences of exercising those

options.” The Watt complaint further alleged that the Watt

defendants “caus[ed] plaintiff dependents to be ineligible to

receive federal services provided exclusively to Indians, and

to enjoy other federal rights available to Indians, including

such rights as having land held in trust for them.” (Emphasis

added). 

The Watt complaint sought rescission of the distribution

plan and a declaration “that the purported termination of the

[plaintiffs’] Indian status . . . and the trust . . . status of the

lands of the Table Mountain Rancheria . . . is void . . . and

that plaintiff distributees [and dependents] have been and

remain eligible to participate in all federal programs and benefits provided to Indians because of their status as Indians.”

(Emphasis added). 

On March 28, 1983, the Watt parties stipulated to a settlement and judgment. The stipulation provided that the named

plaintiffs 

represent the class of persons certified as consisting

of all persons named in the distribution plan of the

Table Mountain Rancheria as distributees of the

assets of said Rancheria, or the Indian heir(s),

assign(s), executor(s), administrator(s), or successor(s) in interest thereof who, by reason of having

participated in the distribution of the assets of said

Rancheria at any time have been considered by the

government of the United States or any other governmental entity to have lost their status as Indians

under the laws of the United States. 

(Emphasis added). The stipulation also required the Secretary

of the Interior to list the Table Mountain Band of Indians as

ALVARADO v. TABLE MOUNTAIN RANCHERIA 15365
an Indian tribal entity under 25 C.F.R. Part 83.6(b), and permit any class member or successor who received title to an

asset because of the 1959 distribution to “elect to restore any

such interest [to] federal trust status” by conveying it to the

United States for the benefit of the tribe. The Watt settlement

further stated that “[t]he status of the named individual plaintiffs and class members as Indians under the laws of the

United States is confirmed.” The settlement provided that

plaintiffs would dismiss their damages claims against the Secretary of the Interior and the United States. 

The district court approved the stipulated settlement on

June 16, 1983. The Watt court retained jurisdiction to enforce

the judgment for one year after its date of entry. 

On December 14, 1983, the Secretary of the Interior published a notice in the Federal Register, pursuant to 25 C.F.R.

§ 83.6(b), designating the TMR as a federally recognized “Indian tribal entity” eligible to receive services from the BIA.

Indian Tribal Entities Recognized and Eligible to Receive

Services from the United States Bureau of Indian Affairs, 48

Fed. Reg. 56,862-02, 56,866 (Dec. 14, 1983).4

Sometime thereafter, the TMR enacted a constitution and

4This notice is somewhat inconsistent with the Watt settlement, which

required the Secretary of the Interior to list “the Table Mountain Band of

Indians as an Indian Tribal entity.” However, it also required the United

States to hold land in trust for “the Table Mountain Band of Indians or the

Indians of the Table Mountain Rancheria, as may be specified in the

instrument(s) of conveyance.” The Watt complaint identifies the Watt

plaintiffs as those individuals who lost their status as Indians under federal

law as a result of their participation in the Table Mountain distribution

plan, not as the individuals who made up the Table Mountain Band of

Indians. Also, the Watt plaintiffs are referred to collectively as “the Indians of the Table Mountain Rancheria.” Appellants seek admission to the

Table Mountain Rancheria, and identify that entity as “a party plaintiff in

[Watt].” Therefore, we refer to the tribe defendant in this case as the Table

Mountain Rancheria, not as the Table Mountain Band of Indians. 

15366 ALVARADO v. TABLE MOUNTAIN RANCHERIA
established TMR membership requirements. Section 1 of the

constitution stated: 

The membership of the TMR shall consist of the following: 

(a) All persons of California Indian descent who

were listed as distributees or dependent members of

distributees in the plan for the distribution of the

assets of the Table Mountain Rancheria as approved

by the Commissioner of Indian Affairs on July 16,

1959. 

(b) All lineal descendants of persons named on the

base roll provided such descendants possess at least

one-quarter (1/4) degree California Indian blood,

regardless of whether the ancestor through whom

eligibility is claimed is living or deceased. 

The Table Mountain Tribal Council interprets and applies

these provisions. 

After the adoption of the tribal constitution, the plaintiffs in

this action unsuccessfully petitioned the tribal council for

admission to the Table Mountain Rancheria. They alleged

entitlement to membership because they “are direct descendants of and/or dependents of or off-spring of dependents of

distributees . . . of the 1958 distribution plan” and have the

requisite degree of California Indian blood. 

II

On January 6, 2005, Plaintiffs/Appellants filed the instant

action in the United States District Court for the Northern

District of California, the same court in which the Watt action

was filed. They named as defendants the TMR,5 several mem5The Watt complaint’s caption lists the TMR as “dba or successor to the

Table Mountain Rancheria Association.” 

ALVARADO v. TABLE MOUNTAIN RANCHERIA 15367
bers of the Table Mountain Tribal Council, a former Table

Mountain Tribal Council chairperson, several current tribal

members who served as representatives of the plaintiff classes

in Watt, the Secretary of the Interior, and the United States.

The complaint in this action (“2005 complaint”) alleges a

claim for breach of the covenant of good faith and fair dealing

against all Appellees because of their purported failure to

insure that Appellants “were treated the same as the named

parties in [Watt].” The 2005 complaint seeks damages for this

particular breach against the non-government defendants, and

declaratory and injunctive relief against the United States and

the Secretary of the Department of the Interior. The 2005

complaint also alleges a claim for breach of fiduciary duty

against all non-government Appellees, who allegedly participated in an ongoing conspiracy to refuse appellants membership in the tribe. Appellants allege that the duty arose by

virtue of the Appellees’ role as Watt class representatives. The

2005 complaint alleges that this particular breach entitled

Appellants to “any and all benefits provided by the [TMR] to

any and all members . . . which would include . . . casino profits.” 

Additionally, the 2005 complaint prays for an injunction

requiring the tribe to recognize Appellants as members of the

TMR; declaratory relief that Appellants are members of the

TMR and equally entitled to benefits “from the federal government and [TMR]” as are other members of the tribe; and

“a full accounting of any and all benefits bestowed by the federal government Defendants to Table Mountain Rancheria

and/or any of its members from 1983 to the present.” The

2005 complaint also seeks an order compelling the United

States and the Secretary of the Interior to order the TMR to

admit the plaintiffs as members. 

On July 27, 2005, the district court granted in part and

denied in part the Appellees’ motion to dismiss for lack of

jurisdiction. It concluded that “neither an act of Congress nor

15368 ALVARADO v. TABLE MOUNTAIN RANCHERIA
the stipulated judgment in the Watt action provides any basis

for [the district court’s] exercise of jurisdiction over tribal

membership determinations.” In particular, the district court

concluded that the Indian Gaming Regulatory Act, 25 U.S.C.

§ 2701 et seq., did not confer subject matter jurisdiction to

determine whether the tribe or its officers “acted wrongfully

in denying [Appellants’] membership applications.” Also, the

district court distinguished Appellants’ claims from those

which attack a judgment collaterally, noting that Appellants

“have not elected to plead their case on [a collateral attack]

theory.” 

Next, the district court noted that the relief sought against

the government defendants “appears to be premised upon the

fact that the Secretary of the Interior breached a duty owed to

[Appellants] by failing to order the Tribe to admit them as

members.” The district court concluded that Appellants

“failed to cite any federal statute or treaty” authorizing the

government defendants to force the TMR or its officers to

admit any particular individual as a member. Therefore, it

concluded that it lacked subject matter jurisdiction over the

breach of duty claims brought against the government defendants. 

Finally, the district court addressed the question of whether

Appellants could “maintain a claim for declaratory and

injunctive relief under the APA” in order to review the Secretary of the Interior’s “failure to act upon a petition to admit

[Appellants] as members of [the TMR].” The district court

stated that the APA “gives rise to federal question jurisdiction,” but only for claims brought against a federal agency,

and not claims brought against the United States. It determined that the 2005 complaint failed “to state a claim for

relief under the APA.” As a result, all claims against the tribal

defendants, the Watt plaintiffs, and the United States were

dismissed with prejudice. The APA claim against the Secretary of the Interior was “dismissed without prejudice” with

ALVARADO v. TABLE MOUNTAIN RANCHERIA 15369
leave to amend. No amendment was filed. The complaint was

dismissed in its entirety on December 6, 2005. 

III

Appellants contend that the district court erred in ruling

that it lacked subject matter jurisdiction over their claims. We

review a dismissal for lack of subject matter jurisdiction de

novo. Lewis v. Norton, 424 F.3d 959, 961 (9th Cir. 2005). 

A

As a preliminary matter, we address Appellants’ attempt to

distinguish this case from those in which tribal immunity precludes federal court jurisdiction over tribal membership disputes. See, e.g., Opening Br. at 51 (“[T]he tribe does not have

immunity . . . since it waived that immunity in its pursuit as

a party plaintiff in [Watt].”). We do not reach this contention,

because even if it had merit, it would not mandate reversal.

Appellees contend that the district court lacked subject matter

jurisdiction because “Appellants’ complaint contains no federal claim for relief.” Tribal Appellees’ Resp. Br. at 11. We

agree and affirm on this ground. 

[1] Sovereign immunity limits a federal court’s subject

matter jurisdiction over actions brought against a sovereign.

Vacek v. United States Postal Serv., 447 F.3d 1248, 1250 (9th

Cir. 2006). Similarly, tribal immunity precludes subject matter jurisdiction in an action against an Indian tribe. Lewis, 424

F.3d at 961. Yet the absence of immunity does not establish

the presence of subject matter jurisdiction. Rather, the cornerstone of federal subject matter jurisdiction is statutory authorization. See, e.g., Exxon Mobil Corp. v. Allapattah Servs., 545

U.S. 546, 553 (2005) (“[F]ederal courts have no jurisdiction

without statutory authorization.”). 

[2] To confer subject matter jurisdiction in an action

against a sovereign, in addition to a waiver of sovereign

15370 ALVARADO v. TABLE MOUNTAIN RANCHERIA
immunity, there must be statutory authority vesting a district

court with subject matter jurisdiction. See, e.g., Arford v.

United States, 934 F.2d 229, 231 (9th Cir. 1991) (explaining

that in order to maintain an action against the United States,

there must be both “statutory authority granting subject matter

jurisdiction” and “a waiver of sovereign immunity”). Therefore, to establish that the district court had subject matter

jurisdiction over their claims, Appellants cannot rest on the

assertion that principles of immunity do not apply. Rather,

Appellants must establish some form of statutory authorization for their claims. See Vacek, 447 F.3d at 1250 (quoting

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377

(1994)) (explaining that the party asserting jurisdiction has the

burden of establishing jurisdiction). 

The district court described federal courts’ hesitation to

intrude upon matters of tribal membership as a “straightforward application of the doctrine of sovereign immunity.”

However, Appellants’ case is more infirm than those in which

we have found a lack of subject matter jurisdiction as a result

of tribal immunity. Indeed, the leading cases on federal jurisdiction over tribal matters arise in the context of claims for

which a federal court’s has federal question jurisdiction. See

Donovan v. Coeur d’Alene Tribal Farm, 751 F.2d 1113, 1116

(9th Cir. 1985) (explaining that respect for tribal selfgovernment exempts “purely intramural matters such as conditions of tribal membership, inheritance rules, and domestic

relations from the general rule that otherwise applicable federal statutes apply to Indian tribes”); Santa Clara Pueblo v.

Martinez, 436 U.S. 49, 51-52 (1978) (declining to read Title

I of the Indian Civil Rights Act of 1968 (ICRA), 25 U.S.C.

§§ 1301-1303, to authorize a cause of action in federal court

for declaratory and injunctive relief to enforce the ICRA’s

substantive provisions). Tribal immunity in those cases precluded jurisdiction even though the claims at issue implicated

ALVARADO v. TABLE MOUNTAIN RANCHERIA 15371
federal statutes. As explained below, Appellants’ arguments

fail regardless of whether tribal immunity applies.6

B

Appellants first contend that the district court mistakenly

analyzed their claims as membership disputes beyond the

court’s jurisdiction. They argue that their claims are collateral

attacks on the Watt judgment. They allege that the Appellees

who served as class representatives in Watt provided inadequate representation. 

[3] Presumably, this theory attempts to establish subject

matter jurisdiction by asserting a due process violation. See

Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985)

(“[T]he Due Process Clause of course requires that the named

plaintiff at all times adequately represent the interests of the

absent class members.”). A due process claim provides subject matter jurisdiction when it is supported by facts “sufficient to state a violation of substantive or procedural due

process.” Anderson v. Babbitt, 230 F.3d 1158, 1163 (9th Cir.

2000) (internal quotation marks omitted). 

[4] Characterizing Appellants’ claims as collateral attacks

on the Watt judgment does not establish that the district court

had subject matter jurisdiction. The 2005 complaint does not

collaterally attack the Watt judgment. Instead, it alleges that

Appellees failed to comply with and effectuate the Watt settlement. See, e.g., 2005 Complaint at 26 (requesting that “this

Court . . . issue declaratory judgment . . . that these Defendants . . . must comply with the stipulated judgment [in Watt]

6

In approaching subject matter jurisdiction in this manner, we do not

criticize the district court’s immunity-based conclusions. The holding in

Santa Clara Pueblo v. Martinez has been interpreted to preclude federal

court jurisdiction over challenges to tribal membership on the basis that

tribes are immune from suit. Lewis, 424 F.3d at 961. We reach the same

conclusion as the district court, but rely on a more basic, although in no

way superior, principle. 

15372 ALVARADO v. TABLE MOUNTAIN RANCHERIA
. . .”). Claims of inadequate representation are nowhere to be

found in Appellants’ 2005 complaint. As a result, we may not

consider this claim because it is raised for the first time on

appeal. See Cold Mt. v. Garber, 375 F.3d 884, 891 (9th Cir.

2004). 

C

In concluding that it lacked jurisdiction to enforce the Watt

judgment, the district court found that the relief Appellants

sought was beyond the scope of the Watt judgment. Also, it

determined that the terms of the Watt settlement provided

jurisdiction to enforce the settlement only through June 16,

1984. The district court concluded that Appellants could not

resort to principles of ancillary jurisdiction to overcome sovereign immunity. 

Appellants challenge the district court’s determination that

it lacked ancillary jurisdiction to enforce the Watt judgment.

First, Appellants argue that the district court erred in determining that they could not seek enforcement of the Watt settlement because they were not parties in Watt. Next, they

contend that the district court erred in concluding that Watt

did not involve questions of tribal membership. Third, they

argue that the government appellees are bound by the Watt

judgment. 

The fact that Watt was a federal lawsuit does not establish

jurisdiction over an action to enforce the terms of its settlement. See O’Connor v. Colvin, 70 F.3d 530, 532 (9th Cir.

1995) (stating that federal courts do not enjoy any inherent

jurisdiction to enforce a settlement agreement “simply

because the subject of that settlement was a federal lawsuit”).

In general, “[e]nforcement of [a] settlement agreement . . .

whether through award of damages or decree of specific performance, is more than just a continuation or renewal of the

dismissed suit, and hence requires its own basis for jurisdiction.” Kokkonen, 511 U.S. at 378. 

ALVARADO v. TABLE MOUNTAIN RANCHERIA 15373
[5] The doctrine of ancillary jurisdiction provides an exception to this rule. Federal courts have ancillary jurisdiction

“over some matters (otherwise beyond their competence) that

are incidental to other matters properly before them.” Id. Specifically, a federal court has jurisdiction to enforce a settlement agreement in a dismissed case when the dismissal order

incorporates the settlement terms, or the court has retained

jurisdiction over the settlement contract. Id. at 381-82. In both

instances, the party seeking enforcement of the settlement

agreement must allege a violation of the settlement agreement

in order to establish ancillary jurisdiction. See O’Connor, 70

F.3d at 532 (“Without a violation of the court’s order, there

is no jurisdiction.”). 

[6] The district court did not err in holding that it lacked

ancillary jurisdiction over Appellants’ claims. Appellants

have not alleged violations of the Watt settlement. Their 2005

complaint is premised on the allegation that they were wrongfully excluded from membership in the TMR. This allegation

does not constitute a violation of the Watt settlement because

the Watt settlement did not establish membership in the TMR

either expressly or by implication. Rather, the settlement provided that “[t]he status of the named individual plaintiffs and

class members as Indians under the laws of the United States

is confirmed.” 

Appellants cite no authority for the proposition that gaining

Indian status under federal law is equivalent to acquiring

membership in a tribe. The requirements that determine

Indian status “vary depending upon the purpose for which

Indian status is claimed.” United States v. Bruce, 394 F.3d

1215, 1222 (9th Cir. 2005). In at least one instance, “[t]ribal

enrollment is ‘the common evidentiary means of establishing

Indian status, but it is not the only means nor is it necessarily

determinative.’ ” Id. at 1224 (citation omitted) (defining

Indian status for purposes of 18 U.S.C. § 1152). We are not

persuaded that the Watt judgment determined the Watt plaintiffs’ membership in a tribe simply because it made findings

15374 ALVARADO v. TABLE MOUNTAIN RANCHERIA
regarding the plaintiffs’ Indian status. Whether any of the

Appellees have failed to recognize Appellants as tribe members is immaterial for purposes of the district court’s jurisdiction. Appellants’ 2005 complaint did not allege a violation of

the Watt settlement within the district court’s ancillary jurisdiction. 

[7] Appellants also cannot assert ancillary jurisdiction by

virtue of the Watt settlement’s retention of jurisdiction. The

Watt settlement only extended jurisdiction “for a period of

one year from entry of judgment, or for such longer time as

may be shown to be necessary on a motion duly noticed by

any party within one year from entry of judgment.” The Watt

judgment was entered on June 16, 1983. Therefore, whatever

ancillary jurisdiction the district court had expired on June 16,

1984. 

D

In their statement of jurisdiction, Appellants assert that the

district court had jurisdiction pursuant to “28 U.S.C. § 1331,

and 28 U.S.C. § 1346, as the United States or an agency of the

United States was a defendant in the matter.” Opening Br. at

8. We surmise that this is an attempt to establish federal question jurisdiction. This attempt also fails. 

[8] The only arguably relevant provisions of 28 U.S.C.

§ 1346 vest the district courts with original jurisdiction over

civil actions in which the United States is the defendant. Pursuant to Section 1346(a)(2), district courts have subject matter

jurisdiction over certain types of civil actions “against the

United States, not exceeding $10,000 in amount, founded

either upon the Constitution, or any Act of Congress, or any

regulation of an executive department, or upon any express or

implied contract with the United States.” Appellants’ claims

are not founded on the Constitution, an Act of Congress, or

a regulation of an executive department. To the extent that

they are founded on a breach of the settlement agreement,

ALVARADO v. TABLE MOUNTAIN RANCHERIA 15375
Section 1346(a)(2) does not establish jurisdiction on that

ground because it “impliedly forbids” the only kind of relief

(declaratory and injunctive) sought against the United States.

North Side Lumber Co. v. Block, 753 F.2d 1482, 1485 (9th

Cir. 1985). 

[9] Section 1346(b)(1), the Federal Tort Claims Act

(FTCA), waives the United States’ sovereign immunity “in a

defined category of cases involving negligence committed by

federal employees in the course of their employment.” Dolan

v. United States Postal Serv., 546 U.S. 481, 484 (2006).

Appellants cannot establish subject matter jurisdiction

through the FTCA because they have not administratively

exhausted their claims. See Jerves v. United States, 966 F.2d

517, 518 (9th Cir. 1992) (explaining that “[t]he Federal Tort

Claims Act . . . vests the federal district courts with exclusive

jurisdiction over suits arising from the negligence of Government employees,” but “before an individual can file an action

against the United States in district court, she must seek an

administrative resolution of her claim” to establish subject

matter jurisdiction). 

E

Finally, we conclude that the district court did not err in

failing to consider whether it had original jurisdiction over

Appellants’ APA claim brought against the Secretary of the

Interior, and supplemental jurisdiction over Appellants’

remaining state law claims. 

The APA provides for judicial review of “[a]gency action

made reviewable by statute and final agency action for which

there is no other adequate remedy in a court.” 5 U.S.C. § 704.

The district court dismissed the APA claim brought against

the United States for lack of subject matter jurisdiction, concluding that “claims under the APA must be filed against a

federal ‘agency’ within the meaning of 5 U.S.C. § 551(1).”

The district court dismissed the APA claim brought against

15376 ALVARADO v. TABLE MOUNTAIN RANCHERIA
the Secretary of the Interior because Appellants did not allege

that they had exhausted their administrative remedies. However, the district court noted that “[t]here is some chance . . .

that [Appellants] can state a claim for relief under the APA”

based on the Secretary of the Interior’s duty “to order the

[TMR] to admit them as members,” and granted leave to

amend that claim. Appellants did not amend their APA claim

against the Secretary of the Interior, and as a result, the district court later dismissed the entire 2005 complaint with prejudice. 

The district court did not expressly address the question of

whether it had subject matter jurisdiction over the APA claim

brought against the Secretary of the Interior. Therefore, dismissal of that claim did not resolve the questions of whether

the district court had to assume supplemental jurisdiction over

Appellants’ state law claims, or whether it could decline to

exercise supplemental jurisdiction over the state law claims.

See 28 U.S.C. §§ 1367(a), (c). 

We do not review the district court’s failure to address

those issues. Rather, we affirm the district court’s dismissal of

the APA claim brought against the Secretary of the Interior,

and its dismissal of the 2005 complaint as a whole, on an

alternate ground supported by the record. See Atel Fin. Corp.

v. Quaker Coal Co., 321 F.3d 924, 926 (9th Cir. 2003) (per

curiam) (“We may affirm a district court’s judgment on any

ground supported by the record, whether or not the decision

of the district court relied on the same grounds or reasoning

we adopt.”). 

[10] In their opposition to Appellees’ motion to dismiss,

Appellants alleged that their APA claim related to the Secretary of the Interior’s failure to comply with its duty under the

Watt judgment, and the Secretary’s “statutory duty under Part

290 of Title 25, C.F.R.” This claim seeks to compel agency

action. See § 706(1) (providing a cause of action to “compel

agency action unlawfully withheld or unreasonably delayed”).

ALVARADO v. TABLE MOUNTAIN RANCHERIA 15377
Therefore, it “ ‘can proceed only where a plaintiff asserts that

an agency failed to take a discrete agency action that it is

required to take.’ ” Gros Ventre Tribe v. United States, 469

F.3d 801, 814 (9th Cir. 2006) (quoting Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004)). Absent such an

assertion, a Section 706(1) claim may be dismissed for lack

of jurisdiction. Id.

[11] Appellants did not provide any authority for the proposition that any federal agency was required to order the TMR

to admit Appellants as members. In fact, “Appellants decided

not to amend the complaint on the APA issue, because of the

relative unimportance of that issue, and because it would have

delayed appeal of the matter.” Opening Br. at 5 n.1. As discussed infra, the Watt settlement did not require the Secretary

of the Interior to force the TMR to admit Appellants as members. Because Appellants failed to allege any authority to support their APA claim, the district court lacked jurisdiction

over the only claim that might have established original jurisdiction (i.e., federal question jurisdiction under 28 U.S.C.

§ 1331). As a result, the district court could not assert supplemental jurisdiction over any remaining state law claims, and

the 2005 complaint was properly dismissed in its entirety. 

AFFIRMED. 

15378 ALVARADO v. TABLE MOUNTAIN RANCHERIA