Filed: Aug. 28, 2000
Latest Update: Feb. 21, 2020
Summary: F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS AUG 28 2000 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk SHERON L. HARRISON, Plaintiff-Appellant, v. No. 99-7108 (D.C. No. 98-CV-228-S) DEPARTMENT OF INTERIOR, (E.D. Okla.) BUREAU OF INDIAN AFFAIRS, Jack Chaney, Acting Area Director, Office of Tribal Services; JACK CHANEY, Defendants-Appellees. ORDER AND JUDGMENT * Before BRORBY , ANDERSON , and MURPHY , Circuit Judges. After examining the briefs and appellate re
Summary: F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS AUG 28 2000 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk SHERON L. HARRISON, Plaintiff-Appellant, v. No. 99-7108 (D.C. No. 98-CV-228-S) DEPARTMENT OF INTERIOR, (E.D. Okla.) BUREAU OF INDIAN AFFAIRS, Jack Chaney, Acting Area Director, Office of Tribal Services; JACK CHANEY, Defendants-Appellees. ORDER AND JUDGMENT * Before BRORBY , ANDERSON , and MURPHY , Circuit Judges. After examining the briefs and appellate rec..
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 28 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
SHERON L. HARRISON,
Plaintiff-Appellant,
v. No. 99-7108
(D.C. No. 98-CV-228-S)
DEPARTMENT OF INTERIOR, (E.D. Okla.)
BUREAU OF INDIAN AFFAIRS,
Jack Chaney, Acting Area Director,
Office of Tribal Services; JACK
CHANEY,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before BRORBY , ANDERSON , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Plaintiff-Appellant Sheron L. Harrison appeals from the district court’s
order upholding the decision of the United States Department of the Interior,
Bureau of Indian Affairs (BIA) denying her a Certificate of Degree of Indian
Blood (CDIB). 1
We affirm.
In January 1997, Harrison submitted an application for a CDIB and for
tribal membership to the Choctaw Nation on behalf of herself and of other
relatives who are not involved in this appeal. She claimed entitlement to a CDIB
based on her purported lineal descent from Cyrus H. Kingsbury, who was enrolled
as a member of the Choctaw tribe on the Final Choctaw Rolls.
The Choctaw Nation, acting on behalf of the BIA, denied Harrison’s
request. It stated that although Cyrus Kingsbury was enrolled as a member of the
Choctaw tribe, he obtained this status as a white person adopted by the tribe
(referred to as an “AW” or “adopted white”) rather than by possessing a specific
quantum of Indian blood. Harrison appealed this decision to the Muskogee Area
Director of the BIA, who reached the same conclusion as the Choctaw Nation and
denied the request for a CDIB. 2
The Director further found that Ida Kingsbury,
1
“Certificates of Degree of Indian Blood (“CDIBs”) are issued by the BIA
and are the BIA’s certification that an individual possesses a specific quantum of
Indian blood. A CDIB entitles the holder to participate in some government
assistance programs.” Davis v. United States , 192 F.3d 951, 956 (10th Cir. 1999).
2
The Choctaw Nation also found that it had no record that Cyrus H.
Kingsbury had any children. For this reason, the Muskogee Area Director
(continued...)
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Lucy Ann McDermott, and Annie Keel, other ancestors noted by Harrison in her
application, were listed on the rolls as freedmen, with no Indian blood ascribed.
Harrison thereafter sought review of the Director’s decision in the district
court. On August 23, 1999, after extensive briefing on the matter, the district
court issued a well-reasoned order affirming the Director’s decision. On appeal
from this decision, Harrison makes two basic arguments: first, that the district
court failed to review the full administrative record in reaching its decision; and
second, that the district court erred in affirming the BIA because she is entitled to
a CDIB based on her descent from Cyrus H. Kingsbury.
Appellant’s complaints concerning the record lack merit. She first claims
that in making its decision, the BIA considered documents in addition to those she
submitted, and did not provide them to the district court as part of the
administrative record. In order to conduct proper judicial review, a reviewing
court should have the full administrative record before it. See Citizens to
Preserve Overton Park, Inc. v. Volpe , 401 U.S. 402, 420 (1971), overruled on
other grounds by Califano v. Sanders ,
430 U.S. 99 (1977). We note, however,
2
(...continued)
theorized that Harrison might be related to a “Si Kingsbury,” a white man or
freedman belonging to the tribe who was listed as the father of Ida Kingsbury.
Although Harrison believes that Si Kingsbury and Cyrus H. Kingsbury are the
same person, the Director apparently concluded that they were two different
people.
-3-
that the BIA submitted what it claims was the entire administrative record to the
district court. See R. doc. 78; Appellees’ Br. at 22-23. Harrison fails to specify
which specific documents allegedly relied upon by the BIA are missing from the
record. Absent a more specific claim of error, we are unable to determine that the
administrative record is incomplete. 3
Relying on dicta in Sac & Fox Tribe v. Andrus , 645 F.2d 858, 861 (10th
Cir. 1981), Harrison next argues that the BIA failed to make plain its course of
inquiry through proper organization of the administrative record, and instead
cobbled together a disorganized administrative record that is unsuitable for our
review. We disagree. The administrative record is adequate for our review and
adequately discloses the evidence relied upon by the BIA in reaching its decision.
Finally, Harrison argues that the record contains documents that should not
have been submitted to the district court. This claim fails for the same reason as
her claim that the administrative record is incomplete: she fails to identify any
3
In her reply brief, Harrison identifies a specific document that the BIA
allegedly relied upon in deciding her claim, known as the “Proof of Heirship.”
While this document is not part of the BIA’s administrative record, it appears to
be contained elsewhere in the record before the district court. See R. doc. 26, ex.
1. Even if the BIA considered this document in deciding her claim, an assertion
for which Harrison offers no proof, our de novo review of the document
persuades us that its absence from the administrative record was at most, harmless
error.
-4-
specific documents that were submitted to the district court but should not have
been considered.
We turn to Harrison’s challenge to the merits of the BIA’s decision. Under
the Administrative Procedure Act, we review administrative decisions de novo,
according no deference to the district court’s decision. See Mt. Emmons Mining
Co. v. Babbitt , 117 F.3d 1167, 1170 (10th Cir. 1997). We may set aside the
BIA’s action only if it is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with the law.”
Id. (quotation omitted). Upon careful
review of the briefs, the record and the applicable law, we conclude that Harrison
has failed to show that the BIA’s action should be set aside under this standard.
The judgment of the United States District Court for the Eastern District of
Oklahoma is AFFIRMED. Harrison’s “Petition to Expedite” is DENIED as moot.
Entered for the Court
Michael R. Murphy
Circuit Judge
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