Shingle Springs Band of Miwok Indians v. Cesar Caballero

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHINGLE SPRINGS BAND OF MIWOK
INDIANS,
Plaintiff-Appellee,
v.
CESAR CABALLERO,
Defendant-Appellant.
No. 20-16785
D.C. No.
2:08-cv-03133-KJM-AC
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, Chief District Judge, Presiding
Submitted October 20, 2021**
San Francisco, California
Before: WATFORD and HURWITZ, Circuit Judges, and BAKER,*** International
Trade Judge.
The Shingle Springs Band of Miwok Indians (the “Band”) sued Cesar
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable M. Miller Baker, Judge for the United States Court of
International Trade, sitting by designation.
FILED
OCT 22 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Caballero, alleging that he had misappropriated the Band’s name for his own
purposes, in violation of the Lanham Act, 15 U.S.C. §§ 1114, 1125(a), the Anti-
Cybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d), and California law.
The district court dismissed Caballero’s counterclaims and denied a Rule 59(e)
motion. We affirm.
1. Caballero’s counterclaims were premised on the contention that the
Band had been improperly recognized by the federal government. The district court
correctly dismissed the counterclaims as presenting a nonjusticiable political
question. See United States v. Holliday, 70 U.S. 407, 419 (1865); Kahawaiolaa v.
Norton, 386 F.3d 1271, 1276 (9th Cir. 2004).
2. Cabellero’s Rule 59(e) motion claimed that newly discovered evidence
would overcome “the nonjusticiable political question rule.” This evidence
consisted of an exchange between Caballero and a superintendent from a regional
office of the Bureau of Indian Affairs, who explained that the regional office could
not act on Caballero’s request to recognize his group instead of the Band and referred
him to another branch of the Department of the Interior. Even assuming it was newly
discovered, this evidence does not affect the settled notion that tribal recognition is
reserved to the executive branch or Congress, not the courts. See Agua Caliente
Tribe of Cupeno Indians of Pala Rsrv. v. Sweeney, 932 F.3d 1207, 1215 (9th Cir.
2019).

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3. The district court held Caballero in civil contempt first for violating a
preliminary injunction and later for violating a permanent injunction. Caballero
claims that the contempt citations must fall because we later reversed the summary
judgment on which the permanent injunction was based, see Shingle Springs Band
of Miwok Indians v. Caballero, 630 F. App’x 708 (9th Cir. 2015), and the Band
declined to pursue further injunctive relief on remand. But this argument does not
excuse his disobedience of the preliminary injunction, which was affirmed on direct
appeal. See Shingle Springs Band of Miwok Indians v. Caballero, 424 F. App’x 696
(9th Cir. 2011). And, after being cited for contempt for disobeying the permanent
injunction, Caballero filed a compliance report and was never sanctioned. His
compliance with the contempt order renders the appeal moot. See Davies v.
Grossmont Union High Sch. Dist., 930 F.2d 1390, 1394 (9th Cir. 1991).1
AFFIRMED.
1 Caballero’s motion to take judicial notice is GRANTED. The Band’s
motion to take judicial notice is GRANTED.

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