Pacino v. Oliver

Background

Frank Pacino owns a partial interest in an allotment of land on the Round Valley Indian Tribe’s Covelo reservation. The opinion states that the land could not be leased without approval from both a majority of its owners and the Secretary of the Interior, and that no lease had been recorded through that process. In 2017, Pacino discovered that the Olivers had taken up residence on the allotment and had installed a fence and locked gate.

Pacino asked tribal police to evict the Olivers but was told they had been directed not to do so. The Bureau of Indian Affairs sent a cease-and-desist letter. The tribal council later passed a resolution purporting to approve life tenure on the allotment for Cathy Oliver. Pacino filed an ejectment action in Tribal Court, but that court dismissed the complaint for lack of subject-matter jurisdiction. Pacino did not continue to the Tribal Court of Appeals before filing this federal case.

Exhaustion of Tribal Remedies

The federal case had been stayed because Pacino had not exhausted his administrative or tribal-court remedies. The issue before the court was whether his untimely appeal to the tribal appellate court satisfied the requirement that tribal remedies be completed before a federal court intervenes. Tribal-court exhaustion is a judicial rule based on respect for tribal legal institutions; it generally gives those institutions a full opportunity to consider and correct issues before federal court involvement.

The court considered recognized exceptions to exhaustion, including bad faith, conduct that plainly violates an express limit on tribal jurisdiction, and situations in which further tribal review would be futile because there is no adequate opportunity to challenge jurisdiction. The court rejected Pacino’s bad-faith argument. Even if the Tribal Court’s jurisdictional dismissal was inconsistent with precedent, the court said that inconsistency alone did not show that the Tribal Court acted to harass him.

The court also rejected the futility argument. The Round Valley Indian Tribe has a Tribal Court and Court of Appeals established by its Constitution and governed by published rules. Although the tribal judiciary’s website appeared not to have been maintained since 2019, the court found that the tribal judicial structures and procedures were sufficiently established. The rules allowed the Court of Appeals, in its discretion, to grant relief from a late appeal for good cause when no party would be prejudiced. The court found insufficient evidence that the Court of Appeals had exceeded its discretion in refusing Pacino’s appeal, which was filed well beyond the 30-day deadline.

The court relied on Ninth Circuit authority stating that a party cannot generally claim that tribal remedies are futile merely because the party’s own untimeliness makes an appeal unavailable. Allowing federal jurisdiction on that basis would undermine the exhaustion requirement.

Disposition

The court concluded that Pacino had not exhausted his tribal-court remedies and likely would never be able to do so because of the missed deadline. It therefore dismissed the case with prejudice. The opinion states that Pacino could still pursue a state-court action under Public Law 280 and had apparently not formally appealed the Bureau of Indian Affairs’ inaction through the administrative process. The court did not decide the underlying right to possession of the allotment. Judge Richard Seeborg entered the order on February 10, 2023.