Newtok Village et al v. Patrick et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
NEWTOK VILLAGE, and NEWTOK
VILLAGE COUNCIL,
Plaintiffs,
vs.
ANDY T. PATRICK; JOSEPH TOMMY;
and STANLEY TOM,
Defendants.
Case No. 4:15-cv-00009 RRB
ORDER DENYING MOTION TO SET
ASIDE DEFAULT JUDGMENT
(Docket 65)
I. 	FACTUAL AND PROCEDURAL BACKGROUND
On April 21, 2015, Plaintiffs filed a Petition for Injunctive Relief against
Defendants.1 Plaintiffs included Newtok Village, a Federally recognized Indian Tribe, and
the Newtok Village Council, the current governing body of Newtok Village. Defendants
were three individuals who resided in the community of Newtok, who were previous
members of the Council. 	In late 2012, “a tribal election dispute arose, out of which two
groups emerged each claiming to be the bona fide tribal governing body of the Tribe.”2
1 Docket 1.
2 Docket 1 at ¶ 11. For the sake of simplicity, the Court recognizes that Plaintiffs generally are
recognized in the briefing as the “New Council” of Newtok Village, and Defendants were part of the “Old
Council.”
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The Bureau of Indian Affairs (“BIA”) got involved in late 2012 when it
became apparent that, in connection with several contracts arising under the Indian Self-
Determination Act (“ISDA”),3 the BIA received “various emails and documents relating
to 	the 	conflict,” 	and 	determined 	that 	it 	had 	“a 	duty 	to 	determine 	the 	authorized
representatives of the governing body of Newtok.”4 The BIA made it clear that its policy
was to allow the Tribe to resolve internal tribal conflicts, but it also recognized that it had
to determine which tribal governing body the BIA would officially recognize for
contracting purposes.5
Following its investigation, the BIA determined that tribal membership had
clearly and legitimately requested a vote; that the October 12, 2012, meeting and election
appeared to have been organized in response to that request; and that the majority of voting
members cast their ballots in favor of the New Council.6 Moreover, the BIA “viewed the
video which appears to confirm the voting process” that yielded a vote in favor of the “New
Council.”7 	But the BIA noted that on November 4, 2012, the Old Council claimed
reelection via a separate vote, and refused to cede leadership.8
3 The ISDA “directs the Secretary of the Interior to enter into contracts with willing tribes, pursuant
to which those tribes will provide services such as education and law enforcement that otherwise would
have been provided by the Federal Government.” Salazar v. Ramah Navajo Chapter, 567 U.S. 182, 185
(2012). 4 Docket 65-1 at 1–2 (United States Department of the Interior, Bureau of Indian Affairs,
Determination Regarding Newtok Village Leadership).
5 Id. at 2.
6 Id. at 6.
7 Id. at 5.
8 However, when given the opportunity to provide the BIA with evidence to support its claim, the
Old Council “furnished no written submissions documenting the basis of its claim to continuing authority,
or demonstrating why the Bureau should not recognize the New Council.” Id. at 7.
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Ultimately, at general membership meeting on June 14, 2013, the Old and
New Council members agreed to hold a vote as to whether to confirm the Old or New
Council, so that the Tribe could move forward. 	Records reflect 52 votes in favor of
confirming the New Council, and 30 votes in favor of confirming the Old Council.9
However, the Old Council again refused to cede leadership.10
On July 11, 2013, based on its review of the evidence, the BIA opined that a
leadership vacuum would be detrimental to the best interests of the Tribe, as multiple
government funding agencies needed to be able to do business with an authorized tribal
governing body in light of the urgent need to physically relocate the village site. 	It also
found no justification for recognizing the Old Council, and therefore officially recognized
the New Council as the legitimate governing body of Newtok Village.11
The 	Old 	Council 	appealed 	to 	the 	Interior 	Board 	of 	Indian 	Appeals,
effectively staying the BIA’s recognition of the New Council.12 But on August 21, 2013,
the 	Director 	of 	the 	Division 	of 	Community 	and 	Regional 	Affairs, 	Department 	of
Commerce, Community and Economic Development, State of Alaska, issued a letter
decision recognizing the New Council as the legitimate governing body of Newtok Village
for the purposes of administering all state grants and contracts with the Tribe, a decision
which was “final and unappealable.”13 As a result, on May 27, 2014, the Interior Board of
9 Id. at 7.
10 Id.
11 Docket 1 at ¶ 17; see also Docket 65-1.
12 Docket 1 at ¶ 18.
13 Id. at ¶¶ 19–20.
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Indian Appeals lifted the stay, making the July 11, 2013, decision fully effective, and
rendering the New Council the federally recognized governing body of Newtok Village.14
Thereafter, the New Council, now known simply as the Newtok Village
Council, became Plaintiffs in this matter. The 2015 Complaint alleged that after the BIA’s
May 27, 2014, decision recognizing the New Council, Defendants continued to make
repeated “representations to various federal, state and private agencies seeking money and
misrepresenting that they are the legitimate governing body of Newtok Village,” and “have
retained records[,] equipment and other property belonging to Newtok Village.”15 	After
unsuccessfully attempting to obtain such records, equipment, and other property in order
to carry out contractual obligations of the Tribe, the Newtok Village Council filed this
Complaint for injunctive relief, seeking to enjoin Defendants from misrepresenting that
they were the legitimate governing body, and directing Defendants to turn over all records,
equipment, and property owned by Newtok Village to the Newtok Village Council.16
The Clerk of Court entered Default on July 21, 2015, after Defendants, who
had been properly served, failed to plead or otherwise defend this action.17 	This Court
found that it had jurisdiction over the subject matter of the Complaint under 28 U.S.C.
§ 1331 (Federal Question) and § 1362 (Indian Tribe Plaintiff), and entered Default
Judgment and a permanent injunction on November 4, 2015.18 	Plaintiffs subsequently
14 Id. at ¶ 21–22.
15 Id. at ¶ 24–25.
16 Id. at 5.
17 Docket 11.
18 Docket 16.
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moved for attorney fees and costs, which the Court granted in the amount of $6,533.57 plus
interest.19
II. 	MOTION TO VACATE DEFAULT JUDGMENT FOR
LACK OF SUBJECT MATTER JURISDICTION
Pursuant to 28 U.S.C. §1331, “[t]he district courts shall have original
jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United
States.” 	Original jurisdiction involving Indian Tribes was specifically articulated in
28 U.S.C. § 1362, which identified jurisdiction “of all civil actions, brought by any Indian
tribe or band with a governing body duly recognized by the Secretary of the Interior,
wherein the matter in controversy arises under the Constitution, laws, or treaties of the
United States.”
Although this Court found that it had jurisdiction pursuant to 28 U.S.C.
§ 1331 and § 1362, Defendants now argue that Plaintiffs failed to meet the statutory
requirements of either provision because the Complaint failed to present a federal question
on its face.20 	Accordingly, Defendants argue that this Court lacked subject matter
jurisdiction over this matter when it was brought in 2015, and that any judgment therefore
is void and should be vacated.21
In response, Plaintiffs argue that this motion is untimely, that the Court
properly exercised its subject matter jurisdiction, and that Defendants’ motion is moot
because Defendants already have substantially fulfilled the obligations of this Court’s
19 Dockets 20, 26.
20 Docket 65 at 16.
21 Docket 65.
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judgment regarding tribal records, tribal funds, and tribal property, so vacating the
judgment would have no effect other than allowing the Old Council to resume falsely
asserting its authority.22
A. 	Timeliness
“Subject matter jurisdiction can never be waived or forfeited,”23 and a litigant
can raise a court’s lack of subject matter jurisdiction at any time in the same civil action,
including “post-trial.”24 Accordingly, timeliness of this motion is not an issue.
B. 	Federal Question
The only issue is whether this matter “arises under the Constitution, laws, or
treaties of the United States.” Defendants argue that Plaintiffs’ Complaint did not identify
a federal question on its face.25 	Rather, they assert that the Complaint alleges “fruits of
internal tribal disputes” and state conversion claims, and argue that “the fact that the BIA
made a decision involving the Newtok Tribe and contracting does not create a federal
question.”26
1. 	State law claims
Defendants argue that Plaintiffs’ allegations regarding removal of village
records “constitute [state law] claims for conversion and do not arise under federal law for
federal jurisdiction purposes.”27 While Defendants may or may not be correct, the Court
22 Docket 69.
23 Gonzalez v. Thaler, 565 U.S. 134, 141 (2012).
24 Kontrick v. Ryan, 540 U.S. 443, 455, 459 (2004).
25 Docket 65 at 6.
26 Id. at 7–8.
27 Id. at 9.
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need find only one source of jurisdiction, which would allow it to assert jurisdiction over
other non-federal claims.
2. 	Internal tribal dispute
The Court is unpersuaded by Defendants’ argument that the “main purpose
of the Petition was to have the District Court settle and enforce the Newtok Tribe’s internal
leadership dispute.”28 Defendants characterize the default judgment entered by the Court
as “turning on determining which group is the legitimate governing body of the tribe,”29
which is outside of this Court’s jurisdiction. This matter was not before this Court to settle
a “tribal election dispute.” 	That dispute previously had been addressed by the Tribe, as
later determined by the BIA when the BIA stated that it “accepts the assertion of the
members of the New Council that they constitute the Traditional Council which has the
authority to act as the governing body of Newtok Village . . . .”30 	The issue of tribal
leadership, therefore, had been resolved, arguably on multiple occasions, before this
lawsuit was filed. 	The BIA’s official determination that the New Council was the
governing body recognized for purposes of contracting under the ISDA was asserted on
the face of the Complaint. 	For this Court’s purposes, the BIA’s official recognition of
tribal leadership was not a contested issue.
28 Id. at 10.
29 Id. at 12–13.
30 Docket 65-1.
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3. 	Enforcement of tribal judgment
Defendants argue that the fact that the BIA made a decision involving a Tribe
and its entitlement to federal contracting does not create a federal question.31 	Plaintiffs
respond that it is the federal enforcement of the tribal judgment of the 2012 election dispute
that is a federal question.32 But Plaintiffs’ reliance on the Ninth Circuit’s 2019 decision in
Coeur d’Alene Tribe v. Hawks, is misplaced. 	The Coeur d’Alene decision specifically
concluded “the Tribe’s action to enforce the Tribal Court’s judgment against a nonmember
presents a substantial issue of federal law,” and that its decision was specifically limited to
those facts.33
4. 	Indian Self-Determination Act, 25 U.S.C. § 450 et seq.
More persuasive is Plaintiffs’ argument that the Complaint presented federal
questions pursuant to the ISDA. 	In 1975, the United States Congress enacted the Indian
Self-Determination and Education Assistance Act.34 The ISDA “directs the Secretary of
the Interior to enter into contracts with willing tribes, pursuant to which those tribes will
provide services such as education and law enforcement that otherwise would have been
provided by the Federal Government. ISDA mandates that the Secretary shall pay the full
amount of ‘contract support costs’ incurred by tribes in performing their contracts.”35
Plaintiffs were the federally-recognized governing body under the ISDA when the
Complaint was filed. 	Accordingly, the sole issue now before this Court is whether the
31 Docket 65 at 7–8.
32 Docket 69 at 11–14.
33 933 F.3d 1052, 1057–60 (9th Cir. 2019) (emphasis added).
34 Public Law 93-638; 25 U.S.C. § 450 et seq.
35 Salazar, 567 U.S. at 185.
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Tribe’s recognized governing body’s request for an injunction against individuals falsely
asserting tribal authority in the matter of government contracts is a “matter in controversy
aris[ing] under the Constitution, laws, or treaties of the United States,” pursuant to
28 U.S.C. § 1362.
Before § 1362, tribes were “relegated . . . to state court” unless
the United States chose to protect a tribe's rights in federal
court by suing in its capacity as tribal trustee under 25 U.S.C.
§ 175 . . . . As tribes perceived state courts as “inhospitable to
Indian rights,” this was troubling. . . . Responding to this
situation, Congress enacted § 1362 to “open the federal courts
to the kind of claims that could have been brought by the
United States as trustee, but for whatever reason were not so
brought” and thus “assure[ ] [tribes] of the same judicial
determination whether the action is brought in their behalf by
the Government or by their own attorneys.” . . . Because of this
history, a tribe’s ability to sue under § 1362 is understood to be
“at least in some respects as broad as that of the United States
suing as the tribe's trustee.”36
The 2015 Complaint alleged that after the BIA’s decision recognizing the New Council,
Defendants continued to make repeated “representations to various federal, state and
private agencies seeking money and misrepresenting that they are the legitimate governing
body of Newtok Village.”37 	Because the New Council was the federally recognized
governing body of Newtok Village,38 any attempt by the Old Council to assert the right to
contract arguably was fraudulent and caused damage to Plaintiffs, as described in the
Complaint. 	The practical goal of the lawsuit, according to Plaintiffs, was to stop
Defendants from attempting to defraud Federal, state, and other agencies out of money
36 Gila River Indian Cmty. v. Cranford, 459 F. Supp. 3d 1246, 1251–52 (D. Ariz. 2020) (internal
citations omitted).
37 Docket 1 at ¶ 24–25.
38 See id. at ¶¶ 17–22.
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intended for the Tribe under the ISDA, and to prevent the continued disruption of tribal
contracting rights under the ISDA and related federal and state statutes, in addition to
recovering property and records necessary for audit compliance with federal laws and
regulations.39
To that end, the Complaint specifically identifies Newtok Village as a
“federally recognized Indian tribe,” eligible to enter into contracts with BIA pursuant to
the ISDA.40 	Count 1 alleged that “Defendants have engaged in a pattern and practice of
misrepresenting themselves as the legitimate tribal governing body for Newtok in the
solicitation of funds and contracts to which Newtok Village is rightfully eligible,” and that
“such misrepresentations by the Defendants are illegal.”41 Ideally, Plaintiffs would have
identified a relevant federal criminal statute at this juncture, establishing the illegality of
such activities. 42 	However, even without a formal amendment to the Complaint, it is
apparent that a suit against Defendants allegedly impersonating a recognized tribal
governing body potentially falls under a variety of federal statutes, particularly in light of
the fact that such misrepresentation interferes with federal government contracts. 	The
citation of the ISDA, in conjunction with the allegations that Defendants have interfered
with contracts between the Tribe’s legitimate governing body and the federal government,
is adequate to establish federal question jurisdiction.
39 Docket 69 at 3–4.
40 Docket 1 at ¶ 8.
41 Docket 1 at ¶¶ 28–29.
42 The Court posits, by way of example, that Defendants could have faced potential liability under
the False Claims Act, 31 U.S.C. § 3729 et seq., which provides for a private right of action in a civil context.
31 U.S.C. § 3730(b).
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Defendants were served in this action and for five years did not, at their peril,
make any attempt to defend their position. The Default Judgment therefore was justified
and will not now be vacated.
IT IS SO ORDERED this 25th day of February, 2021, at Anchorage, Alaska.
/s/ Ralph R. Beistline
RALPH R. BEISTLINE
Senior United States District Judge
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