                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           JUN 28 2017
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
CROW ALLOTTEES ASSOCIATION, a                    No.   15-35679
Montana non-profit corporation; ERMA
JEAN FIGHTER MOCCASIN;                           D.C. No. 1:14-cv-00062-SPW
CLAUDIA E. FLATMOUTH;
KATHLEEN L. FLATMOUTH; LEON B.
FLATMOUTH; REBECCA K.                            MEMORANDUM*
FLATMOUTH; RONALD J.
FLATMOUTH; CARLSON GOES
AHEAD; MICHAEL HILL; FLOYD
HORN; BEVERLY GRAY BULL
HUBER; STEPHEN D. HUBER; HENRY
OLD HORN; SHARON S. PEREGOY;
LYNNA SMITH; FRANCIS JOE WHITE
CLAY,

              Plaintiffs-Appellants,

 v.

UNITED STATES BUREAU OF INDIAN
AFFAIRS; UNITED STATES
DEPARTMENT OF THE INTERIOR;
SALLY JEWELL, in her official capacity
as United States Secretary of the Interior;
KEVIN K. WASHBURN, Esquire, in his
official capacity as Assistant Secretary of
the Interior for Indian Affairs,



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
              Defendants-Appellees.


                    Appeal from the United States District Court
                            for the District of Montana
                     Susan P. Watters, District Judge, Presiding

                        Argued and Submitted June 14, 2017
                               Seattle, Washington

Before: BYBEE, M. SMITH, and CHRISTEN, Circuit Judges.

      Crow Allottees Association and individual members of the Crow Tribe

(“Plaintiffs”) appeal the district court’s dismissal of their claims on sovereign

immunity grounds. “We review de novo . . . whether the United States has waived

its sovereign immunity,” Harger v. Dept. of Labor, 569 F.3d 898, 903 (9th Cir.

2009), and can affirm “on any basis supported by the record,” Muniz v. United

Parcel Serv., Inc., 738 F.3d 214, 219 (9th Cir. 2013). We affirm.

1.    The district court held that sovereign immunity barred Plaintiffs’ claims.

Plaintiffs contend that 5 U.S.C. § 702, 25 U.S.C. § 345, and 28 U.S.C. § 1353

waive the United States’ sovereign immunity for their claims. The district court

correctly ruled that 25 U.S.C. § 345 and 28 U.S.C. § 1353 do not waive sovereign

immunity for Plaintiffs’ claims because Plaintiffs are not seeking an initial

allotment of land. See Jachetta v. United States, 653 F.3d 898, 906 (9th Cir. 2011)

(explaining that 25 U.S.C. § 345 waives sovereign immunity “only with respect

                                           2
to . . . cases . . . seeking an original allotment” (citation omitted)); id. (“We have

held that ‘28 U.S.C. § 1353 is a recodification of the jurisdictional portion of [25

U.S.C.] § 345.’” (citation omitted)). The district court held that 5 U.S.C. § 702 did

not waive sovereign immunity because there was no final agency action.

Specifically, the district court ruled that there would be no final agency action until

the waivers executed pursuant to the Crow Tribe-Montana Water Rights Compact

(the “Compact”) became effective. We note that the district court’s starting

premise—that § 702’s waiver of sovereign immunity requires final agency

action—is the subject of an intra-circuit split in authority. See Gros Ventre Tribe v.

United States, 469 F.3d 801, 808–09 (9th Cir. 2006) (explaining the divergent

views this circuit has taken on whether § 702 requires final agency action). We

need not resolve this tension, however, because we affirm the district court’s

dismissal of Plaintiffs’ claims on alternative grounds and, in any event, the relevant

waivers have gone into effect. See id.

2.    We affirm the dismissal of Plaintiffs’ claims because they have failed to

state a claim on which relief can be granted. Starting with Count I, Plaintiffs seek

a declaration of their water rights pursuant to Winters v. United States, 207 U.S.

564 (1908). This claim is contingent on the validity of the Compact and the Crow

Tribe Water Rights Act of 2010 (the “Settlement Act”), which ratified the


                                            3
Compact. If the Compact and Settlement Act are valid, the district court cannot

declare that Plaintiffs have Winters water rights because the Compact and

Settlement Act expressly define Plaintiffs’ water rights as that portion of the tribal

water right allocated to them by the Crow Tribe. Thus, the success of Count I

depends on the success of the remaining counts.

      Turning to Count II, Plaintiffs claim that the United States violated fiduciary

duties owed to Plaintiffs, including the duty to provide private counsel. Plaintiffs

also argue that the government violated its fiduciary duties by not obtaining

Plaintiffs’ participation or consent in negotiations, failing to ensure that Plaintiffs

retained their Winters rights, and failing to ensure that Plaintiffs got enough water

to irrigate their lands. As explained below, Plaintiffs have not pointed to any

authority imposing upon the United States a duty to provide Plaintiffs with private

counsel. See Gros Ventre Tribe, 469 F.3d at 809–10 (explaining that there is no

“common law cause of action for breach of trust that is wholly separate from any

statutorily granted right”). And though Plaintiffs’ other allegations may support a

takings claim or a claim under the Federal Torts Claims Act for breach of fiduciary

duties, Plaintiffs have expressly stated that they are not seeking monetary relief for

a taking or other violation of their rights at this time. Here, Plaintiffs only ask us to

hold that the Settlement Act (and, by extension, the Compact) is unconstitutional.


                                            4
Though their allegations may support a claim for damages,1 they do not provide a

basis for rendering the Settlement Act invalid. See United States v. Jicarilla

Apache Nation, 564 U.S. 162, 175 (2011) (“Throughout the history of the Indian

trust relationship, [the Supreme Court has] recognized that the organization and

management of the trust is a sovereign function subject to the plenary authority of

Congress.”); Winton v. Amos, 255 U.S. 373, 391 (1921) (“It is thoroughly

established that Congress has plenary authority over the Indians and all their tribal

relations, and full power to legislate concerning their tribal property.”).

      Similarly, Count III alleges that the government violated Plaintiffs’ due

process rights by not consulting them during negotiations, not providing them with

private counsel, and not obtaining their consent to waive their rights. This

procedural due process argument fails because the legislative process was the only

process to which Plaintiffs were entitled. See Minn. State Bd. for Cmty. Colls. v.

Knight, 465 U.S. 271, 283 (1984) (“The Constitution does not grant to members of

the public generally a right to be heard by public bodies making decisions of

policy.”).




      1
         We express no views on the merits of any future claims for damages that
Plaintiffs may bring.
                                           5
      In Count IV, Plaintiffs allege that the United States violated 25 U.S.C. § 175

by not providing them private legal counsel. Section 175, however, provides: “In

all States and Territories where there are reservations or allotted Indians the United

States attorney shall represent them in all suits at law and in equity.” 25 U.S.C.

§ 175 (emphasis added). Section 175 provides no basis for Plaintiffs’ argument

that they are entitled to private legal counsel at the Government’s expense.

Though Congress has occasionally enacted legislation requiring the United States

to pay for private counsel to represent Indians in some matters, see United States v.

Gila River Pima-Maricopa Indian Cmty., 391 F.2d 53, 56–57 (9th Cir. 1968),

Plaintiffs point to no statute requiring the United States to pay for private counsel

here. And to the extent Plaintiffs might seek representation by the United States

attorney (which they do not claim to do), “[w]e have held that the statute (section

175) is not mandatory.” Id. at 56. Count IV thus fails as a matter of law. Count

V, which seeks mandamus relief forcing the United States to provide Plaintiffs

with independent counsel pursuant to § 175, also fails for the same reason.

      AFFIRMED.




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