Newtok Village v. Andy Patrick

                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


NEWTOK VILLAGE; NEWTOK                    No. 21-35230
VILLAGE COUNCIL,
              Plaintiffs-Appellees,         D.C. No.
                                         4:15-cv-00009-
                 v.                           RRB

ANDY T. PATRICK; JOSEPH TOMMY;
STANLEY TOM,                                OPINION
            Defendants-Appellants.

      Appeal from the United States District Court
               for the District of Alaska
      Ralph R. Beistline, District Judge, Presiding

       Argued and Submitted November 9, 2021
                Seattle, Washington

               Filed December 22, 2021

  Before: Ronald M. Gould, Richard C. Tallman, and
          Patrick J. Bumatay, Circuit Judges.

               Opinion by Judge Tallman
2                NEWTOK VILLAGE V. PATRICK

                          SUMMARY *


                           Indian Law

   The panel vacated the district court’s orders denying
defendants’ motion to set aside a default judgment and
awarding attorney fees to plaintiffs in an action concerning
governance of Newtok Village, a federally recognized
Alaskan Native tribe.

    One faction of Newtok Village leaders, the “New
Council,” sued another faction, the “Old Council,” seeking
an injunction to prohibit the Old Council from representing
themselves as the Tribe’s legitimate governing body.
Following election meetings in 2012, the Department of
Interior Bureau of Indian Affairs (“BIA”) chose to recognize
the New Council as Newtok’s governing body, but limited
this recognition to Indian Self-Determination and Education
Assistance Act (“ISDEAA”) contract-related purposes
addressing relocation and other tribal services underwritten
by federal funds. The district court concluded that it had
subject matter jurisdiction, entered a default judgment after
the Old Council did not defend the lawsuit, and awarded the
injunctive relief the New Council sought. The district court
later denied the Old Council’s motion to set aside the default
judgment and vacate the permanent injunction as void and
lacking any federal jurisdictional basis. The district court
awarded New Council its attorney fees for successfully
defending the Old Council’s motion.



    *
      This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
               NEWTOK VILLAGE V. PATRICK                     3

    The panel held that the district court erred in concluding
that it had subject matter jurisdiction because New Council’s
claims, as pleaded, did not arise under the Constitution, laws,
or treaties of the United States. The panel held that the
ISDEAA, which confers jurisdiction on federal district
courts to hear disputes regarding self-determination
contracts, applies only to suits by Indian tribes or tribal
organizations against the United States, and does not
authorize an action by a tribe against tribal members. New
Council’s complaint did not allege interference with, or
challenge the validity of, any existing ISDEAA contracts.
Rather, New Council’s claims sounded in common law tort
and conversion and lacked a federal foundation.

    The panel held that, under the Grable test, no substantial
question of federal law was present because no federal issue
was necessarily raised, actually disputed, substantial, and
capable of resolution in federal court without disrupting the
federal-state balance approved by Congress. The panel
concluded that New Council’s complaint did not specify
facts showing that the construction and effect of the
ISDEAA or any other federal law was an essential element
of the claims for injunctive and mandamus relief.

    The panel held that this case concerned an intratribal
dispute, nonjusticiable in federal court, because New
Council’s claims were akin to conversion, fraud, and other
common law claims between tribal members. The panel
concluded that continuing to enforce the permanent
injunction risked the federal court’s impermissible
involvement in interpreting the Tribe’s constitution and
laws. Moreover, the BIA was not a party to the action,
further supporting the conclusion that there was no inherent
and disputed federal question.
4             NEWTOK VILLAGE V. PATRICK

    The panel held that, because the district court lacked
subject matter jurisdiction, the default judgment, permanent
injunction, and attorney fees award must be vacated. The
panel remanded with instructions for the district court to
enter an order of dismissal without prejudice to repleading
the complaint if the plaintiffs could establish a federal
foundation for their claims.


                       COUNSEL

Patricia Ferguson-Bohnee (argued), Indian Legal Clinic,
ASU Public Interest Law Firm, Phoenix, Arizona; James J.
Davis Jr., Northern Justice Project LLC, Anchorage, Alaska;
for Defendants-Appellants.

Michael Walleri (argued), Jason Weiner & Associates PC,
Fairbanks, Alaska, for Plaintiffs-Appellees.
                    NEWTOK VILLAGE V. PATRICK                       5

                                OPINION

TALLMAN, Circuit Judge:

    This case requires us to examine the boundary between
tribal sovereignty and federal court jurisdiction. The
residents of Newtok Village, a federally recognized Alaskan
Native tribe, face an existential threat from environmental
changes. Severe coastline erosion caused by the rapidly
shifting Ninglick River has forced Newtok to relocate its
coastal village inland to a new village site. Throughout this
historic, challenging, and ongoing relocation, two factions of
Newtok Village leaders—the Newtok Village Council (New
Council) 1 and the former Newtok Traditional Council (Old
Council) 2—have engaged in an internecine dispute,
stemming in part from a series of tribal election meetings
held in 2012. At issue is who speaks for the Tribe in
accomplishing the move and beyond. The Department of
Interior Bureau of Indian Affairs (BIA) 3 chose to recognize
the New Council as Newtok’s governing body. But the BIA

    1
      Plaintiffs-Appellees are the Newtok Village tribe and the New
Council, which includes President Paul Charles, Vice President George
Carl, Member Simeon Fairbanks, Jr., Member Louie Andy, and Member
Katherine Charles.
     2
       Defendants-Appellants are several Newtok members, including
Andy Patrick of the Old Council (which in 2012 was comprised of
President Moses Carl, Vice President Walter Kassaiuli, Treasurer Louie
Patrick, Secretary Andy Patrick, Member Joseph John Sr., Member
Joseph Inakak, and Member George Tom). Defendant-Appellant
Stanley Tom was a Tribal Administrator and employee but not an elected
Traditional Council member at times relevant to this action. However,
for sake of reader convenience, this opinion refers to the Defendants-
Appellants generally as the Old Council.
    3
        The BIA is not a party to this lawsuit.
6              NEWTOK VILLAGE V. PATRICK

strictly limited this recognition to Indian Self-Determination
and Education Assistance Act (ISDEAA) contract-related
purposes addressing relocation and other tribal services
underwritten by federal funds.

    In 2015, the New Council sued the Old Council in the
United States District Court for the District of Alaska,
seeking an injunction to prohibit former Old Council
members and tribal administrators from misrepresenting
themselves as the Tribe’s legitimate governing body to
federal, state, and private agencies and persons. The district
court concluded it had subject matter jurisdiction to hear the
case, entered a default judgment after the Old Council did
not defend the lawsuit, and awarded the injunctive relief the
New Council sought. Five years later, the Old Council filed
a motion to set aside the default judgment and vacate the
permanent injunction as void and lacking any federal
jurisdictional basis. The district court found that subject
matter jurisdiction existed, denied the Old Council’s motion,
and later awarded the New Council its attorney fees for
successfully defending the motion, finding the Old Council
had acted in bad faith in filing the motion and in its conduct
leading up to the lawsuit.

    On appeal, the Old Council continues to assert that this
case does not arise under the Constitution or laws of the
United States; it therefore seeks dismissal, as well as vacatur
of the attorney fees award. Meanwhile, the New Council
argues that the judgment and fees award should stand; it
responds that the case concerns a simple but especially
important federal question for jurisdictional purposes: Who
is the federally recognized tribal entity for contracting?
Because subject matter jurisdiction remains at issue over the
lifespan of a case, we must first confront the question of
whether this dispute is justiciable in federal court.
                NEWTOK VILLAGE V. PATRICK                        7

                                 I

                                A

    Newtok Village is a federally recognized Alaska Native
tribe. See Indian Entities Recognized by and Eligible To
Receive Services From the United States Bureau of Indian
Affairs, 

-01, 7558 (Jan. 29, 2021).
Newtok’s residents are Yup’ik Eskimo and pursue a mostly
subsistence lifestyle. See H.R. Rep. No. 108-345, at 1
(2003). Yup’ik Eskimo have inhabited the Bering Sea coast
for over 2,000 years, and the people of Newtok have
occupied their existing village site, which abuts the Ninglick
River, since around 1949. See 

 For decades, the Ninglick
River has eroded the village bank, threatening all structures,
and the erosion increased exponentially in the past two
decades. See id., at 2. Climate change has been a
contributing factor to this erosion. 4

    “To save the village and its way of life,” H.R. Rep. No.
108-345, at 2, Congress approved a land swap of
approximately 12,101 acres of existing Newtok Village
lands for approximately 10,943 acres further inland to host a
new village site (now called Mertarvik), see Land
Exchange—Alaska Native Village Corporation, 

 Stat. 1358 (2003). Relocation efforts to the
new village site at Mertarvik are ongoing.


    4
      See generally State of Alaska Dep’t of Com., Cmty., and Econ.
Dev., Div. of Cmty. and Reg’l Affs., Relocation Report: Newtok to
Mertarvik (2011), https://www.commerce.alaska.gov/web/Portals/4/pu
b/Mertarvik_Relocation_Report_final.pdf; U.S. Gov’t Accountability
Off., GAO-09-551, Alaska Native Villages: Limited Progress Has Been
Made on Relocating Villages Threatened by Flooding and Erosion
(2009), https://www.gao.gov/assets/gao-09-551.pdf.
8              NEWTOK VILLAGE V. PATRICK

     Many stakeholders are involved with assisting Newtok’s
relocation, including federal and state agencies, and the
Tribe’s governing body. Newtok’s constitution provides for
public elections to be held during October. NEWTOK CONST.
art. VIII, § III. The chosen members of the seven-member
governing body, the “Traditional Council,” serve for two- or
three-year terms. Id. art. IV, § VI. But for more than seven
years prior to October 2012, the Tribe held no election.
Newtok’s governing body, or “Traditional Council,” was the
Old Council during those years.

    Back in 2005, the BIA began negotiations with Newtok
through the Old Council pursuant to the ISDEAA. Those
efforts resulted in the Tribe entering into multiple self-
determination contracts with the federal government. The
Old Council signed various resolutions and authorizations
for the contracts, and the BIA continued to recognize the
authority of the Old Council on subsequent contract
modifications and authorizations.

    However, “[i]n the fall of 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.” The Tribe
had circulated a membership petition to hold an election for
tribal leaders, and the New Council was allegedly elected at
the public election meeting in October 2012. But in early
November 2012, “another section of the Tribe [the Old
Council] held a public meeting and elected different
leaders.” BIA representatives met with the New Council
later that month, who advised that “two separate tribal
councils claimed to represent Newtok and both had held
elections ostensibly conducted in accordance with the
Constitution on October 12 and November 4, 2012.”

    The Old Council and the New Council both asserted that
they are the legitimate governing body of Newtok and
              NEWTOK VILLAGE V. PATRICK                   9

refused to recognize each other. Each group further
requested that the BIA conduct business only with one and
not the other. In March 2013, the BIA advised both Councils
of BIA policies regarding resolution of such internal tribal
disputes. The BIA informed them that for purposes of self-
determination contracts it “has a duty to determine the
authorized representatives of the governing body of
Newtok” by soliciting information from both Councils to
support their respective positions about their authority to
govern. In response, the New Council provided the BIA
with initial documentation relating to the October 2012
election. The BIA then advised the Tribe on June 10, 2013,
that without an effective FY2013 ISDEAA contract, it would
contract with a third-party nonprofit entity, such as the
Association of Village Council Presidents, to provide
necessary services to Newtok. If that was ineffective, the
BIA informed the Tribe that it would proceed to determine,
based on the documentation submitted, which Council was
the legitimate governing body for ISDEAA contracting
purposes.

    Two weeks later, the New Council asked the BIA to
recognize it as the governing body of Newtok Village and
submitted additional evidence, including documentation
relating to a June 14, 2013, meeting which both Councils
attended. At that meeting, Tribal Administrator Stanley
Tom made a motion for Newtok members to confirm which
election they supported. The attending members by majority
vote confirmed the results of the October 12 election,
recognizing the New Council as the governing body of
Newtok Village.

                             B

   On July 13, 2013, after considering the documentation
submitted by the New Council, the BIA declared the New
10             NEWTOK VILLAGE V. PATRICK

Council to be the governing body of Newtok Village “for the
limited purposes of taking [ISDEAA] contract-related
actions . . . for services to Newtok and its members.” The
BIA found the “continuation of a leadership vacuum would
be detrimental to the best interests of the tribe, particularly
[during the relocation efforts],” but also stated that “this BIA
determination is actually only for purposes of BIA
administration of its own programs under the
[ISDEAA] . . . .” In its recognition letter the BIA—quoting
in part an earlier letter to it from the New Council—further
explained:

       As with many tribal internal conflicts, the
       members of Newtok have the authority to act
       on their own to resolve these issues . . . “The
       heart of self-determination is the choice of
       the tribal community to freely determine
       themselves, the composition of their
       leadership.”

Therefore, the BIA promised, it “will comply with the
direction given, if any, regarding [ISDEAA] contracting by
the New Council acting as the Traditional Council.”

    The Old Council appealed the BIA’s administrative
determination. The Interior Board of Indian Appeals
affirmed the agency’s decision on August 6, 2015. See
Newtok Traditional Council, 

 (IBIA
2015). However, before the Board had issued its final
decision, the New Council sued the Old Council in the
United States District Court for the District of Alaska,
seeking an order enjoining the Old Council from
representing itself as the legitimate governing body and
mandating that the Old Council hand over tribal records,
               NEWTOK VILLAGE V. PATRICK                   11

equipment, and property to the New Council. The Old
Council did not answer the complaint.

    The district court ultimately entered a default judgment
and permanent injunction against the Old Council on
November 4, 2015. The district court concluded it had
subject matter jurisdiction over the case pursuant to

 (Federal question) and 1362 (Indian
tribes). The order permanently enjoins the Old Council and
anyone under their control or direction from representing to
anyone that they hold office with the Tribe, and permanently
enjoins the Old Council from possessing any property of the
Tribe and occupying Newtok’s council building. The
district court later ordered post-judgment relief for the New
Council, including issuing a writ of assistance and awarding
attorney fees.

    The docket remained relatively dormant until June 2020
when the New Council filed a motion with the district court
seeking an “order directing Andy Patrick to show cause why
he should not be held in contempt for willful violation” of
the 2015 default judgment and injunction. The New Council
alleged that Defendant-Appellant Andy Patrick sought to
circumvent Newtok’s COVID-19 pandemic-related travel
restrictions by purporting to give the Tribe’s approval to a
private aviation company for carrying a resident who wished
to return to the village. Less than a month later, without a
hearing, the district court issued an order holding Patrick in
contempt.

    On December 29, 2020, over five years after the district
court had entered the default judgment and permanent
injunction, the Old Council finally retained legal counsel and
filed its motion to set aside both decrees under Federal Rules
of Civil Procedure 55(c) and 60(b)(4). The motion argued
12             NEWTOK VILLAGE V. PATRICK

that the default judgment was void for lack of subject matter
jurisdiction.

    The district court denied that motion on February 25,
2021, concluding that, based on the ISDEAA, the case
presented a federal question because the complaint was not
about the issue of tribal leadership but rather alleged
“interfere[nce] with contracts between the Tribe’s legitimate
governing body and the federal government.” The court
found that the complaint “specifically identifies Newtok
Village as a ‘federally recognized Indian tribe,’ eligible to
enter into contracts with BIA” under the ISDEAA. The
court further found it “apparent” that, “even without a formal
amendment,” the complaint against the Old Council
“potentially falls under a variety of federal statutes,
particularly in light of the fact that such misrepresentation
interferes with federal government contracts.” The court
ultimately left standing the default judgment and permanent
injunction.

    The district court also granted the New Council’s second
attorney fees motion on March 26, 2021. The court
determined it had equitable power under the federal common
law “bad faith exception” to award fees to the New Council
as the prevailing party. The court found the Old Council
acted in bad faith because they did not “attempt to defend
this action for five years, and then moved to vacate default
judgment on groundless theories.”

     The Old Council timely appealed both adverse orders.

                              II

    We have appellate jurisdiction under 

.
On appeal, the Old Council challenges the district court’s
determination that it had subject matter jurisdiction over this
               NEWTOK VILLAGE V. PATRICK                    13

case. The Old Council also asserts that because the district
court lacked the power to hear this case it abused its
discretion by granting attorney fees to the New Council.

    We review de novo the district court’s conclusion
regarding subject matter jurisdiction, see Chilkat Indian Vill.
v. Johnson, 

, 1470 (9th Cir. 1989), and the
denial of the motion to set aside the default judgment as void,
see Exp. Grp. v. Reef Indus., Inc., 

 (9th
Cir. 1995). We have a continuing duty to ensure we have
subject matter jurisdiction over a case. See Allstate Ins. Co.
v. Hughes, 

 (9th Cir. 2004) (amended
opinion). We “possess only that power authorized by
Constitution and statute,” and we must presume “that a cause
lies outside this limited jurisdiction and the burden of
establishing the contrary rests upon the party asserting
jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am.,

 (1994) (cleaned up); see also Stock W.,
Inc. v. Confederated Tribes of the Colville Rsrv., 

, 1225 (9th Cir. 1989).

    We assess whether the district court abused its discretion
in granting attorney fees, see In re Knight, 

,
1119 (9th Cir. 2000), except that an underlying finding of
bad faith is reviewed for clear error, see Rodriguez v. United
States, 

 (9th Cir. 2008). “A district court
by definition abuses its discretion when it makes an error of
law.” Koon v. United States, 

 (1996).

                              III

    This case marks another step in our circuit’s
jurisprudential journey in interpreting federal Indian law.
Federal courts are courts of limited jurisdiction, having the
power to hear certain cases only as the Constitution and
federal law authorize. See Stock W., Inc, 873 F.2d at 1225
14              NEWTOK VILLAGE V. PATRICK

(“A federal court is presumed to lack jurisdiction in a
particular case unless the contrary affirmatively appears.”).
A federal basis is thus necessary to permit a federal court to
adjudicate a case. Of the two types of federal subject matter
jurisdiction—diversity of citizenship and federal question—
only federal question jurisdiction is at issue in this appeal.

    The Old Council insists that subject matter jurisdiction
does not exist because the New Council’s complaint fails to
plead a federal question on its face, no substantial federal
question is raised under the Grable 5 Test, and the case
concerns a nonjusticiable intratribal dispute. We address
each of these contentions in turn.

      Article III of the Constitution confers jurisdiction upon
federal courts to hear “all Cases, in Law and Equity, arising
under this Constitution, the laws of the United States, and
Treaties made, or which shall be made, under their Authority
. . . .” U.S. CONST. art. III, § 2, cl. 1. This constitutional
requirement has a narrower statutory counterpart, providing
that federal district courts “shall have original jurisdiction of
all civil actions arising under the Constitution, laws, or
treaties of the United States.” 

. Another
jurisdictional statute, 

, specifically relates
to Indian tribes, stating that federal district courts “shall have
original 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.” Sections 1331 and 1362 are now largely



    5
      See Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg.,

 (2005).
                  NEWTOK VILLAGE V. PATRICK                            15

duplicative. 6 The “arise under” language is common to both,
ultimately mandating the existence of a claim that arises
under the Constitution or federal statutory or common law to
confer subject matter jurisdiction. See Gila River Indian
Cmty. v. Henningson, Durham & Richardson, 

,
714–15 (9th Cir. 1980).

    “Despite the pervasive influence of federal law in Indian
affairs, federal court jurisdiction over cases involving
Indians and Indian affairs is not automatic.” 1 Cohen’s
Handbook of Federal Indian Law § 7.04[1][a] (Nell Jessup
Newton ed. 2017).          “In addition, respect for tribal
sovereignty will lead courts to exercise section 1331
jurisdiction in cases involving tribal disputes and reservation
affairs ‘only in those cases in which federal law is
determinative of the issues involved.’” Id. (quoting Longie
v. Spirit Lake Tribe, 

 (8th Cir. 2005)).

    In the case now before us—examining the particular
facts of the claims asserted and applying the well-pleaded
complaint rule—we hold that subject matter jurisdiction has
not been shown. The New Council’s claims as pleaded
simply do not arise under the Constitution, laws, or treaties
of the United States.

                                    A

    A plaintiff is the master of his complaint and responsible
for articulating cognizable claims. Under the well-pleaded
complaint rule, “federal jurisdiction exists only when a
federal question is presented on the face of the plaintiff’s
    6
      Section 1362 is limited, however, in that it “does not apply to suits
by or against individual Indians.” 13D Charles Alan Wright, Arthur R.
Miller & Richard D. Freer, Federal Practice and Procedure § 3579
(3d ed. 2021, Apr. 2021 Update).
16             NEWTOK VILLAGE V. PATRICK

properly pleaded complaint.” Caterpillar Inc. v. Williams,

 (1987). A cause of action “arises under”
federal law “only if federal law ‘creates the cause of action’
or a ‘substantial question of federal law is a necessary
element’ of a plaintiff’s well-pleaded complaint.” Coeur
d’Alene Tribe v. Hawks, 

 (9th Cir. 2019)
(quoting Morongo Band of Mission Indians v. Cal. State Bd.
of Equalization, 

, 1383 (9th Cir. 1988)).

    But the “mere reference of a federal statute in a pleading
will not convert a state law claim into a federal cause of
action if the federal statute is not a necessary element of the
state law claim and no preemption exists.” Easton v.
Crossland Mortg. Corp., 

, 982 (9th Cir. 1997)
(per curiam). Likewise, under 

 and 1362,
federal question jurisdiction does not exist simply because
an Indian tribe or individual is a party. See Coeur d’Alene
Tribe, 

 (citing Stock W., Inc., 873 F.2d at
1225). “Nor is there any general federal common law of
Indian affairs.” Id. (cleaned up). Indeed, we have held that
federal common law does not cover all contracts entered into
by Indian tribes because that might open the doors to the
federal courts becoming “a small claims court for all such
disputes.” Gila River, 626 F.2d at 714–15; see also Peabody
Coal Co. v. Navajo Nation, 

, 951–52 (9th Cir.
2004).

    For instance, in Peabody Coal, we addressed whether
enforcement of an arbitration award by a non-Indian mining
company against the Navajo Nation related to commercial
Indian mineral leases approved by the Department of Interior
raised a federal question under 

. 

. We first concluded that the mining company did not
bring a cause of action created by federal law, and then
proceeded to ascertain whether the mining company’s right
               NEWTOK VILLAGE V. PATRICK                   17

to relief necessarily depended on resolution of a substantial
question of federal law. 

. Notwithstanding the
“extensive federal regulatory scheme” over—and federal
approval of—the mineral leases, we held the mining
company’s complaint presented no substantial federal
question because it did not contest the validity of or allege
that the tribe breached the underlying coal leases, and the
issue regarding an arbitration award could be resolved by
general contract law. 

 at 951–52.

    We looked in part to our decision in Littell v. Nakai for
support. See Peabody Coal Co., 

, 951 (citing

, 487–90 (9th Cir. 1965)). Littell concerned a
tortious interference with contract claim by the Navajo
Nation’s General Counsel against the Chairman of the
Navajo Tribal Council. 

. We held the
complaint did not present a federal question because the
claim required interpreting the contract itself. 

. “[T]he fact that the contract was approved by federal
officials was not relevant to the resolution of the parties’
dispute.” Peabody Coal Co., 

 (explaining
Littell). Thus, under Peabody Coal and Littell, federal
regulation and approval of a contract does not alone
implicate a significant federal question. Cf. Ariz. Pub. Serv.
Co. v. Aspaas, 

 (9th Cir. 1995) (amended
opinion) (holding a federal question existed where the
dispute over breach of a federally approved lease involved
determining whether the Navajo Nation exceeded its
sovereign authority in regulating employment policies of a
non-Indian corporation conducting business on tribal
property).

   Here, federal law does not create the New Council’s
causes of action. The New Council sought injunctive and
mandamus relief. Specifically, the New Council alleged that
18             NEWTOK VILLAGE V. PATRICK

the Old Council has “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
“[s]uch misrepresentations by the [Old Council] are illegal.”
The complaint states that the Old Council submitted an
ISDEAA contract proposal to the BIA, to which “the New
Council objected to the Old Council receiving any funds on
behalf of the tribe.” But it does not allege that the Old
Council wrongfully received any federal funds. The
complaint does allege that “[a]s a result of the BIA Area
Director[’]s decision, the ‘New Council’ is now the federally
recognized governing body of Newtok Village.” But none
of these assertions and claims actually rely upon federal law.
The only reference to any federal law in the complaint lies
in the facts section:

       As a federally recognized Indian tribe,
       Newtok Village . . . entered into contracts
       with the Bureau of Indian Affairs (“BIA”)
       pursuant to the Indian Self-Determination
       Act, (P.L. 93-638, as amended; 

 et. seq.) (“638”), as well as other state
       and federal contracts and grants.

This citation alone, however, cannot convert the New
Council’s claims into a federal cause of action. See Easton,
114 F.3d at 982. The ISDEAA is not a necessary element of
their claims; these are common law claims at their core. See
Chilkat, 870 F.2d at 1472–73 (finding no federal foundation
underlay the tribe’s conversion claims).

    To be sure, the ISDEAA confers jurisdiction on federal
district courts to hear disputes regarding self-determination
contracts. See 

(a). However, this statute
                 NEWTOK VILLAGE V. PATRICK                          19

applies only to suits by Indian tribes or tribal organizations
against the United States, see Demontiney v. United States
ex rel. Dep’t of Interior, Bureau of Indian Affs., 

, 805–06 (9th Cir. 2001), which is not the case here. The
ISDEAA’s civil remedy statute does not authorize an action
by a tribe against tribal members. See 

(a);
Demontiney, 255 F.3d at 808–09.

    Moreover, while the district court found it “apparent”
that the complaint “potentially falls under a variety of federal
statutes,” the well-pleaded complaint rule requires that the
New Council, as the party asserting jurisdiction, properly
plead its causes of action and show on what federal law they
are based. See Kokkonen, 

; Stock W., Inc.,
873 F.2d at 1225. This is not to ignore the district court’s
valid concerns (which we also share) about the Old
Council’s alleged misrepresentations. But the complaint
does not allege interference with, or challenge the validity
of, any existing ISDEAA contracts. See Peabody Coal Co.,

. Rather, the New Council alleged that the
Old Council misrepresented its status as the legitimate
governing body, seeking money from federal, state, and
private agencies, and retained equipment belonging to the
Tribe needed “to carry out contractual obligations . . . .” 7
These claims sound in common law tort and conversion and
lack a federal foundation.




    7
      The Old Council points out that the BIA has been working with the
New Council since 2015 and that “vacating the 2015 judgment would
not impact the BIA’s decision to recognize the [New Council] as the
governing body of Newtok Village for the limited purposes of ISD[EAA]
contracting.”
20               NEWTOK VILLAGE V. PATRICK

    We therefore conclude that as currently pleaded federal
law does not create the New Council’s causes of action. 8 See

; Chilkat, 870 F.2d at 1472–74.

    Nor is a substantial question of federal law present. The
New Council relies heavily upon the “Grable Test”—also
known as the substantial federal question doctrine—to assert
jurisdiction. This doctrine permits federal courts to hear
certain claims recognized under state law “that nonetheless
turn on substantial questions of federal law, and thus justify
resort to the experience, solicitude, and hope of uniformity
that a federal forum offers on federal issues.” Grable & Sons
Metal Prods., Inc. v. Darue Eng’g & Mfg., 

(2005). This standard is met where a federal issue is:
“(1) necessarily raised, (2) actually disputed, (3) substantial,
and (4) capable of resolution in federal court without
disrupting the federal-state balance approved by Congress.”
Gunn v. Minton, 

 (2013) (limiting the
doctrine to a “special and small category” of cases). The
New Council argues that this case concerns an “obvious
federal law question”—that is, who does the federal
government recognize as Newtok’s governing body? We
disagree.

     In Grable, the Court held that the defendant properly
removed a state quiet title action as a federal question when
the plaintiff’s complaint alleged superior title based on the
IRS’s failure to give “adequate notice, as defined by federal
law”—which was an essential element of the state law quiet
title claim—“and the meaning of the federal [tax] statute

     8
      By way of contrast, we note that Congress enacted a statute that
provides criminal penalties for embezzlement, misappropriation, theft,
and fraud related to money and property subject to ISDEAA grants and
contracts. See 

.
               NEWTOK VILLAGE V. PATRICK                     21

[wa]s actually in dispute.” 545 U.S. at 314–15 (“The
meaning of the federal tax provision is an important issue of
federal law that sensibly belongs in a federal court.”).
Finding federal jurisdiction proper, Grable explained that
because other federal laws can potentially give rise to
superior claims, federal courts have long exercised federal
question jurisdiction over quiet title actions when the
“construction and effect of” federal law and relevant facts
are “essential parts of the plaintiffs’ cause of action.” 

 at
315–16 (noting the government’s strong interest in tax
collection).

     But Grable cannot substitute for the lack of a well-
pleaded complaint here. We have held that a state law claim
presents a justiciable federal question under Grable “only if
it satisfies both the well-pleaded complaint rule and passes
the implicates significant federal issues test.” Cal. Shock
Trauma Air Rescue v. State Comp. Ins. Fund, 

 (9th Cir. 2011) (emphasis in original) (cleaned up).
Indeed, Grable itself confirms that, no matter what, federal
question jurisdiction lies only where “it appears from the
complaint that the right to relief depends upon the
construction or application of federal law.” 

(cleaned up).

    On these facts, the New Council’s argument “fails at the
outset” because the complaint does not satisfy the well-
pleaded complaint rule. Cal. Shock Trauma Air Rescue,

. And, unlike Grable, the New Council’s
complaint did not specify facts showing that the construction
and effect of the ISDEAA or any other federal law is an
essential element of the claims for injunctive and mandamus
relief. See 545 U.S. at 314–15. Moreover, the Old Council
correctly notes that this case concerns the federal-tribal
balance, not the federal-state balance under Grable.
22             NEWTOK VILLAGE V. PATRICK

    To illustrate further, this case is unlike Coeur d’Alene
Tribe, where the substantial federal question doctrine
provided a jurisdictional basis. There, the tribe obtained a
tribal court judgment against nonmembers over a property
dispute and sought federal recognition and enforcement of
the judgment. Coeur d’Alene Tribe, 933 F.3d at 1054–55.
We reversed the district court’s order dismissing for lack of
jurisdiction and held “a federal question inhered” in the
tribe’s complaint because it pressed “the outer boundaries”
of its sovereign authority under federal law. 

 at 1059–60
(explaining it was “in essence asking the district court to
determine whether the Tribal Court validly exercised the
powers ‘reserved’ to it under federal common law”). Here,
by contrast, the case concerns common law claims by tribal
members against fellow tribal members. The mere mention
of the ISDEAA, alleged misrepresentations, and
identification of the plaintiffs as a federally recognized tribe
and governing body are not enough to establish federal court
jurisdiction.

   Thus, we also conclude that no substantial federal
question exists on the face of the New Council’s complaint.
See Cal. Shock Trauma Air Rescue, 

.

                               B

    This case also implicates Newtok’s sovereignty.
Intratribal disputes are generally nonjusticiable in federal
courts. Cautioning against intrusion upon tribal sovereignty,
the Supreme Court has said:

       A tribe’s right to define its own membership
       for tribal purposes has long been recognized
       as central to its existence as an independent
       political community. Given the often vast
       gulf between tribal traditions and those with
                NEWTOK VILLAGE V. PATRICK                     23

        which federal courts are more intimately
        familiar, the judiciary should not rush to
        create causes of action that would intrude on
        these delicate matters.

Santa Clara Pueblo v. Martinez, 

, 72 n.32 (1978)
(internal citation omitted). While Congress has broad
authority over Indian matters, “the role of courts in adjusting
relations between and among tribes and their members [is]
correspondingly restrained.” 

. The Court in Santa
Clara Pueblo held the federal court lacked jurisdiction under
the Indian Civil Rights Act to adjudicate a challenge by a
member against the tribe regarding the validity of the tribal
ordinance. 

 The Court explained that doing so “may
substantially interfere with a tribe’s ability to maintain itself
as a culturally and politically distinct entity.” 

    Several of our own cases concerning intratribal disputes
further support our holding here. In Boe v. Fort Belknap
Indian Cmty. of Fort Belknap Rsrv., we held that Indian
plaintiffs challenging the results of a tribal election for
violations of tribal law presented no federal question.

, 279 (9th Cir. 1981) (concluding the tribal
members’ suit did not “involve a dispute or controversy
respecting the validity, construction, or effect” of the Indian
Reorganization Act). We insisted that the “federal nature of
the right to be established is decisive” and determined that
the federal court lacked jurisdiction to grant injunctive relief,
regardless of the plaintiffs’ reliance on the Indian Civil
Rights Act and the Indian Reorganization Act. Id. at 278–
80 (quoting Littell, 

).

    Similarly, in Chilkat, our colleague Judge Canby wrote
that the district court lacked jurisdiction over a dispute
between a tribe and its members based on the face of the
24              NEWTOK VILLAGE V. PATRICK

complaint because there was no inherent and disputed
federal question. 870 F.2d at 1475–76. The tribe in Chilkat
brought claims against members and nonmembers regarding
the removal of tribal artifacts, alleging violations of the tribal
ordinances and 

, a federal embezzlement
statute relating to Indian tribes. Id. at 1471. We held that
§ 1163 did not create a private right of action and that no
“federal foundation” underlay what amounted to conversion
claims. Id. at 1472–73 (“No construction of federal law is
necessary to adjudicate title.”). As to the claims regarding
the tribal ordinance, Chilkat held that those against
nonmembers presented federal questions relating to
sovereign power but those against tribal members “primarily
raise issues of tribal law, and they are the staple of the tribal
courts.” Id. at 1475–76 (rejecting “the view that these
federal questions inhere in a complaint by a tribe seeking to
enforce its ordinance against its own members”).

    The reasoning in these cases applies here. Similar to
Boe, the vague reference to the ISDEAA does not really and
substantially amount to “a dispute or controversy respecting
the validity, construction, or effect” of the statute. 642 F.2d
at 279. And like Chilkat, the New Council’s claims are more
akin to conversion, fraud, and other common law claims
between tribal members, especially given the ISDEAA’s
lack of a private right of action against tribes or tribal
members for these claims. See 870 F.2d at 1472–73. These
claims rather stem directly from an ongoing internecine
dispute. See id.; see also Santa Clara Pueblo, 

.

    The parties also direct us to out-of-circuit caselaw to
inform our decision. In one case cited by the Old Council,
the Eighth Circuit addressed a dispute involving two
competing tribal governing body factions following three
               NEWTOK VILLAGE V. PATRICK                     25

tribal elections. See Sac & Fox Tribe of the Mississippi in
Iowa, Election Bd. v. Bureau of Indian Affs., 

 (8th Cir. 2006). The plaintiffs sought judicial review of
the BIA’s decision to recognize one group as the governing
body under the Administrative Procedure Act (APA), a
declaratory judgment that the BIA wrongfully interfered
with the elections, and a writ of mandamus requiring the BIA
to recognize the older governing body. 

. The
Eighth Circuit held federal law was not determinative of the
issues because “election disputes between competing tribal
councils [are] nonjusticiable, intratribal matters.” 

.

     We think this reasoning extends here—even assuming
that the election itself had been decided—because the
ongoing dispute between competing political factions in the
litigation is intratribal at its core and presents nothing more
than common law claims. Indeed, the New Council sought
to enforce the default judgment against fellow tribal
members in 2020, notwithstanding the fact that members of
the Old Council could potentially be eligible for tribal office
but for the injunction. Continuing to enforce the permanent
injunction here risks the federal court’s impermissible
involvement in interpreting the Tribe’s constitution and
laws. Moreover, the BIA is not a party to this action, further
supporting the conclusion that there is no inherent and
disputed federal question.

    Further, the New Council’s argument regarding
Goodface v. Grassrope, 

 (8th Cir. 1983), is
misplaced. Grassrope concerned a dispute over the BIA’s
decision to not recognize one competing tribal council over
another after a tribal election, “as necessary to maintain basic
services to the Tribe.” 

 at 336–37. The Eighth Circuit
held that, as a review of a federal agency action under the
APA, “the district court possessed jurisdiction only to order
26              NEWTOK VILLAGE V. PATRICK

the BIA to recognize, conditionally, either the new or old
council so as to permit the BIA to deal with a single tribal
government.” 

; see also 

 (“If the only
parties to this action were the 1980 and 1982 councils and
the only question presented was one of interpreting the tribal
constitution and bylaws, we doubt whether a federal court
would have jurisdiction. However, the 1982 council named
various BIA officials as defendants in addition to the 1980
council members.”).

    Here, unlike Grassrope, the BIA’s decision to recognize
the New Council for limited ISDEAA contract-related
purposes is not in dispute. Indeed, the New Council’s
complaint does not seek a determination of its status as
Newtok’s governing body, 9 nor does it challenge BIA
actions related to ISDEAA contracting. The BIA recognized
the New Council and has continued to work with those
officials. The New Council rather seeks to bring common
law claims against other tribal members.

     Additionally, the overexpansive scope of relief requested
in the New Council’s complaint renders the Grassrope
argument unpersuasive. We agree with the Old Council
that—by seeking to enjoin the Old Council from “any
representation that they are the governing body of Newtok
Village; or otherwise represent Newtok Village”—the New
Council in effect sought the district court’s determination of
Newtok’s legitimate governing body for all purposes, not
just ISDEAA purposes for which the BIA sought to narrow
its recognition.


     9
       Had the New Council sought a status determination by the BIA,
jurisdiction may have been appropriate under the APA. See, e.g.,
Aguayo v. Jewell, 

 (9th Cir. 2016).
               NEWTOK VILLAGE V. PATRICK                   27

      The New Council repeatedly asserts that the tribal
election dispute had long ceased to the degree there was BIA
involvement. But importantly, the BIA’s recognition letter
was explicitly limited in scope. The BIA stated its 2013
determination was “actually only for purposes of BIA
administration of its own programs under the [ISDEAA]
. . . .” Determining Newtok’s legitimate governing body for
all purposes would impermissibly require the federal court
to interpret and apply the Newtok constitution and other
laws. Moreover, the injunction is permanent and overbroad,
effectively prohibiting the Old Council members from ever
asserting they are the legitimate governing body—which
appears to conflict with the Tribe’s constitution. That in
itself underscores what this case presents: an intratribal
dispute. The fact that the BIA contracted with New Council
is not germane to the claims the New Council now makes
against its fellow tribal members, the Old Council.

                              C

     In sum, Newtok Village is a “distinct, independent
political communit[y], retaining [its] original natural rights
in matters of local self-government,” and we must respect it
as such here. Santa Clara Pueblo, 

 (cleaned
up). Taken together, the New Council’s claims are not of a
federal nature. They rely primarily on tribal law for
resolution. As we have previously said, “[t]he federal nature
of the right to be established is decisive—not the source of
the authority to establish it.” Chilkat, 870 F.2d at 1474
(citing Boe, 642 F.2d at 279).

    We are mindful of the fact that the New Council’s
allegations raise serious concerns, and the federal
government needs to know with whom it contracts,
particularly during the ongoing, unprecedented relocation
efforts to save Newtok Village and its way of life. To the
28             NEWTOK VILLAGE V. PATRICK

extent that there are any continuing allegations of
misrepresentation, fraud, or any issues related to existing
ISDEAA contracts with Newtok, these complaints may be
presented to the United States Attorney. Or the district court
may permit Newtok Village and the Newtok Village Council
to replead their complaint if they can better establish a
federal basis for federal jurisdiction. But as currently
pleaded, we will not cross the federal-tribal boundary and
inject the federal court into these intratribal conflicts. Doing
so would risk eroding tribal sovereignty, see Santa Clara
Pueblo, 

, and potentially open the door to
federal courts becoming a forum to adjudicate every
intratribal dispute, see Gila River, 626 F.2d at 714–15.

    As currently framed, this case does not arise under
federal law and must therefore be dismissed without
prejudice to permit amendment under a proper basis of
federal jurisdiction.

                              IV

    Finally, we turn to the March 26, 2021, order awarding
the New Council its attorney fees for defending the Old
Council’s motion to set aside the default judgment.

    The issue here is whether the district court had the power
to award the New Council its attorney fees in the first
instance. We hold it did not.

    Because the district court lacked subject matter
jurisdiction over this case, the attorney fees award must be
vacated. See Branson v. Nott, 

, 292–93 (9th Cir.
1995), abrogated on other grounds by Benavidez v. Cnty. of
San Diego, 

 (9th Cir. 2021); accord In re
Knight, 207 F.3d at 1119; see also Smith v. Brady, 

 (9th Cir. 1992) (“[I]f the district court lacked
               NEWTOK VILLAGE V. PATRICK                   29

jurisdiction over the underlying suit, it had no authority to
award attorney’s fees.” (cleaned up)).

                              V

    As pleaded, this case does not arise under federal law.
The default judgment, permanent injunction, and the March
26, 2021, order awarding attorney fees are vacated. Further,
we remand this case and direct the district court to enter an
order of dismissal without prejudice to repleading the
complaint if the plaintiffs can establish a federal foundation
for their claims.

   VACATED and REMANDED with instructions.

   Each party shall bear its own costs and attorney fees on
appeal.