Lawsuit Over Hantavirus in Yosemite

Eastern District of California Docket #: 1:13-cv-00298-AWI-SKO

Ah, Yosemite, home of my ancestors, beloved vacation spot, source of inspiration for millions around the globe, and unfortunately, the occasional host of some pretty nasty viruses.  Once every so often you hear about deer tick disease or bubonic plague breaking out, but let’s face it, Yosemite is a federally designated wilderness area, emphasis on the “wilderness” part.  Because it’s visited by millions each year, the risk of contracting a rare or semi-rare disease that you could only get in a wilderness area is probably going to rise a little.  You’re probably assuming some sort of risk, no matter what the National Park Service has done to sanitize the place.  In this case, the Hantavirus made an appearance in the summer of 2012 in Curry Village, infecting a handful of people and causing a little global scare as various people in different parts of the country came down with it after having stayed in Curry.

I, too, stayed in Yosemite during that summer, in Housekeeping Camp having an awesome time with my girlfriend (and soon-to-be fiance), and two of my friends from law school.  I remember passing by Curry Village in a tram on our way to hike up to Vernal Falls.  Like every other year that I’ve been to Yosemite I saw that Curry was packed with people, which, of course, could be a great breeding ground for a virus if the right conditions were met.

In this particular case, our plaintiff, who stayed in Curry during that fateful summer, caught the disease and racked up a few million in medical bills.  She’s turning around and suing DNC Parks & Resorts for $3.25 million in damages.  (Link).  According to the complaint, the plaintiff, Cathy Carrillo, is alleging two causes of action: (1) premises liability/negligence and (2) strict products liability.  Essentially, the plaintiff’s complaint boils down to the allegation that Delaware North Corporation, the owners of the cabins in Curry, knew or should have known that Hanta was or could’ve been lurking around the place at the time the plaintiff was staying at Curry’s tent cabins.  In addition, DNC misled the plaintiff about the cabin’s safety.  Plus, the plaintiff’s cabin itself was defective, allowing the Hanta-carrying rodents to infiltrate it, and spread the disease.

Right now, the pre-trial conference is set for July 23, 2013 in front of Magistrate Judge Oberto.

 

What motivates us at work? 7 fascinating studies that give insights

Reblogged from TED Blog:

“When we think about how people work, the naïve intuition we have is that people are like rats in a maze,” says behavioral economist Dan Ariely in today’s talk, given at TEDxRiodelaPlata. “We really have this incredibly simplistic view of why people work and what the labor market looks like.”

When you look carefully at the way people work, he says, you find out there’s a lot more at play—and a lot more at stake—than money.

Read more… 1,223 more words

Very interesting and not related to this blog's subject matter, I felt it was worth sharing. Enjoy!

 

Graton Rancheria, a Tribe that Doesn’t Want to Disenroll Its Own People

If anyone needed some good news today, Graton Rancheria has put some effort into amending their constitution to make disenrolling tribal members more difficult, as opposed to making it easier.

The news story is here.

While the constitutional amendments do not prohibit someone from being disenrolled (and that’s fine when it’s necessary), the changes have the following safeguards:

• “Members can lose their citizenship if their enrollment resulted from fraud or mistake — but there is a three-year statute of limitations.”
• “Members enrolled in another tribe are considered ‘to have relinquished (their) citizenship[.]‘”
• “Descendants of people who lose citizenship remain eligible for membership.”  (A good thing because oftentimes a tribe will disenroll someone and take several generations of descendents down with them).
• “The Tribal Council can suspend members — usually for behavioral transgressions such as violence — but their children remain eligible for membership.”  (Punish the wrongdoer, not the children).
• To protect citizenship during times of “political power shifts, the tribe’s laws governing citizenship can be amended only by a two-thirds vote of the General Council[,]” which is all of the adult members, or 800 people.

All in all, a good start.

 

Pala Disenrollment Setback (Allen v. Smith)

The Southern District of California dismissed an action by several disenrolled members of the Pala Indian tribe in Allen v. Smith (link to TurtleTalk for court documents).  The tribal defendants filed a motion to dismiss on the basis of sovereign immunity, as is typical in these membership actions.  What sets this decision apart from your garden variety disenrollment dismissal is the first apparent decision regarding the individual/official capacity distinction that was referenced in this opinion.  And for that, we need to back up and explain things a little.

The Maxwell Decision

This time, plaintiffs attempted to make use of a new 9th Circuit case, Maxwell v. County of San Diego (link to Ninth Circuit for published opinion) to sue tribal officers in their individual capacity rather than the tribe itself.  In most sovereign immunity cases involving state and local governments, when a public officer is sued it makes a difference whether that person is sued in their individual or official capacity.  To keep it brief, official capacity suits are no different than suing the sovereign entity itself because if the plaintiff wins, then the money is paid by the entity.  However, when officials are sued in their official capacity, they are entitled to assert sovereign immunity as a defense to the plaintiff’s claim so long as they can show they were operating within the scope of their official authority.  Individual suits, on the other hand, target only the public official for his own actions and do not seek relief from the entity, but from the individual.

In Maxwell, family members of a shooting victim brought an action in federal court against a tribal fire department and its paramedics, alleging that the individual paramedics unreasonably delayed in obtaining medical treatment for the victim.  The paramedics asserted tribal sovereign immunity because they were operating under a public safety cooperative agreement which expressly reserved the tribe’s immunity in case of suit.  However, that did not work out for the paramedics because the Ninth Circuit held that a remedy against the paramedics would have operated against them individually and not the tribe.  The paramedics themselves would be paying the plaintiffs’ damages, not the tribe (indemnity agreements notwithstanding); therefore, as persons sued in their individual capacity, the paramedics could not assert sovereign immunity as a defense.

Overall, the Maxwell case is troubling for tribal governments because the official/individual capacity distinction did not exist in federal Indian common law until this decision, to which the Turtle Talk blog discussed.  I could go on as to why I like and dislike the Maxwell, but at the time I wondered if Maxwell gave disenrollees another shot at challenging their disenrollments if the individual tribal officers were sued in their individual capacities and not the tribe.  The plaintiff’s attorney in this case thought the same thing, but unfortunately, it did not work out.

The Remedy Sought in Disenrollment Challenges Operates Against Tribes, Not Individuals

The Hon. William Hayes of the Southern District of California began its analysis with the usual verbiage about the contours of sovereign immunity, including familiar references to Santa Clara Pueblo that most disenrolled are familiar with it.  Next, the court moved onto Maxwell and held that it did not apply here.

Maxwell calls for a “remedy-focused” analysis in determining whether an individual capacity suit against a tribal official was really an individual suit or a cloaked version of an official capacity suit.  Here, the plaintiffs’ complaint sought money damages, injunctive relief and declaratory relief, essentially asking that the plaintiffs become restored to the tribal membership rolls.  The tribe itself was not sued, only members of Pala’s Executive Committee (including the tribal chairman), who revised enrollment ordinances which gave them power to adjust the membership as they saw fit.  Subsequently, the defendants disenrolled the plaintiffs, thus commencing this legal fight.  However, the court ultimately determined that the remedy being sought would ultimately operate against the tribe because only the tribal government (via the defendant tribal officers acting in an official capacity) could reverse their disenrollment, and not the individuals acting only in an individual capacity.  And, as the court noted:

Although Plaintiffs challenge the motives and the findings of the [Enrollment] Committee’s individual members, the [Plaintiffs'] Complaint alleges that the Committee, acting as a governing body, disenrolled Plaintiffs.  ‘Without more, it is difficult to view the suit against the officials as anything other than a suit against the Band.’  [Citations omitted].

Plaintiffs called upon the court to make a tribe do something that Santa Clara Pueblo and well-established Ninth Circuit precedent says courts cannot do: interfere with tribal membership disputes.

Conclusion

So Maxwell was not what I was hoping it to be in this case, and once again the disenrolled do not get their day in court.  However, this is the Southern District’s opinion; it remains to be seen how Maxwell establishes itself in the Northern, Eastern, and Central Districts. 

 

Gone For A Bit

Sooooooo busy.

Assisting with trial for the past three weeks.  Before that, spending time with friends and family around the holidays, which is why I haven’t written anything since November 20th, 2012 (but what a great post the last one was).

The joys of being an attorney.  And I think I have another case coming soon.

Meanwhile, Indian Country continues to get interesting.  Hopefully I find time to document some of my findings.

Talk to you soon,

Erick

 

Origins and Purpose

The subtitle of the post: “What my new ‘About‘ page looks like.”

I’ve gotten rid of the “Me & My Blog” page because it sounded too juvenile and looking at it, I realized it had to go.  I replaced with something much more solemn and truer to the purpose of this blog.  I also briefly describe its origins.

Here are selections of the text:

Notes on Indian Law was borne out of frustration with my lack of understanding of Native American law despite the fact that, at the time of this blog’s inception, I was both a law student and (still) Native American.  Subsequent studying and research has ameliorated most of my legal ignorance on this subject, though Indian law is quirky and still amazes me sometimes.  By and large, this blog deals with some of the seedier sides of tribal sovereignty, namely tribal disenrollment.  This blog’s flagship article series, Greed or Growing Pains, kickstarted my quest into understanding the plight of the disenrolled and why gaming tribes do what they do.  Needless to say, I am not anti-gaming, far from it; it can be quite beneficial when used responsibly.  When it is not, it can be quite devastating to Indian families.

…

While growing up, my grandparents told me numerous times that my ancestors came from a place called Ah-Wah-Nee, or as it is better known, Yosemite.  My family and I are descendants of Ten-ie-ya (or Tenaya in popular vernacular), who was a Paiute Indian.  The Indian history in and around Yosemite is fraught with mistakes, errors, and lies, committed either intentionally or negligently, by various federal government officials, other Indians, and various private individuals (both well-meaning and otherwise).  Though you would never have thought about it, the picture of Indian identity within the park, both past and present, is not the full story.  Curiously, I have shied away from using this blog as a means to tell everyone what I think about the situation and perhaps set the record straight.  It is not for a lack of devotion to my heritage, I assure you.  Time, research, and plain ol’ reluctance to take up such a monumental task keeps me from talking about it.  Plus, it’s a subject that is immensely personal to me and I fear losing objectivity.  However, the time may come when that will no longer stop me as I keep seeing abuses piled up on my ancestor’s lands and origins.  For most people, the future is uncertain.  In Yosemite, even the past is uncertain.

On the other end of the spectrum, I am mixed blood.  While I am federally enrolled through my great-grandmother’s people (Walker River Paiute), my bloodline is intermixed with European and Hispanic origins.  California is a great melting pot, beginning with the Native Americans, then the introduction of the Spanish, the Mexicans, and then the white man.  In and around Central California it’s not uncommon to see Native Americans with Hispanic surnames.  Other times you’ll see Native Americans with Euro-centric names as they assimilated into the population.  For example, Rhoan.  I’ve never been called “half-breed,” or a “nosebleed,” but I’ve often felt like that, standing with each foot in two separate worlds.  In some ways, I am a mutt; but as my grandmother and grandfather always told me, I am a Native American and should always think of myself that way.

My sensitivity for Indian issues stems from these two places, Yosemite and my mixed blood heritage.  In one sense, I am aware of the special and particularized needs of the Indian community, the importance of elders, the maintaining of tradition, protecting sacred sites, the survival of language, and the need for self-reliance.  And yet I am pulled in another direction, one that stresses the Judeo-Christian foundations of this country, devotion to federalist principles, the need for fair and equal adjudication of our laws, and most of all, grateful for the liberties and freedom that America has provided me.

It’s a tough road to walk sometimes.  I believe, perhaps naively, that there is a place for a stable, co-existence between Native America and the United States, based on mutual respect.  However, the reality is that one group of people is clearly subordinate to the other.  Documenting the clashes between Indian law and American federal law is what this blog is truly about, even with all my attention on tribal disenrollment.  Even with that narrow subject, the intersection of gaming and Indian culture is truly a collision of Native and European values.  It’s forcing tribes to deal with issues of Indian identity, cultural maturation, and a vast change in tribal infrastructure that no tribe has ever had the capacity to deal with in all the years leading up to the Indian Gaming Regulatory Act.  It is truly a time for growing pains in Indian Country.

So, welcome to Notes on Indian Law, written by a mixed-blood Indian attorney who likes to think he can see both sides of an argument in a murky, ever-changing legal and cultural environment.  I will never profess to having the answer, only an answer.  And it might be wrong or misguided.  If I was truly right about anything I wouldn’t have gotten into so many debates with people over what an answer should look like.
The ultimate goal of Notes is not to change the world or even a mind, but to inform, to enlighten, and hopefully, to encourage critical thinking and discussion of the issues brought up here.

I have an opinion on certain issues and you will have yours.  If you wish to express them here, then feel free.  All I ask is that you keep it clean, don’t troll, don’t be obnoxious; and, please, make coherent arguments that substantively relate to the post you’re commenting on.  If you are just here to make noise then don’t expect to have your comments published.  This is my blog and you are welcome to go start your own if you don’t like mine.  For the rest of you, thanks for reading.

 

Indian Gaming

It’s been a long while since I last wrote something.  Life has a way of getting in the way of your plans.  I thought about this blog yesterday and thought it would be a good idea to formulate my philosophy on Indian gaming.

I’ve written a lot about secondary effects of gaming since this blog’s inception.  You’ve heard me rail on and on about tribal disenrollments, the Indian Civil Rights Act, and greedy tribal councils.  Yet at the same time I don’t think I’ve done enough to elucidate a clear stance on Indian gaming.  I’ve written a sentence about it here and there, but it never received its own post.  So, here it is.

Indian gaming is beneficial to tribes.  It is a unique and lucrative economic tool that tribes may use to earn money for their people.  Many tribes were shockingly poor and living in almost third-world conditions prior to the advent of Indian gaming.  The money was desperately needed.  Since its inception, Indian gaming has led to running water, indoor plumbing, standardized housing, clinics, schools, scholarships, jobs (for Indian and non-Indians), roads, buildings, and vast infrastructure improvements.  Tribes have donated money to charity and invested some of their money in surrounding communities.  In a perfect world, Indian gaming benefits everyone.

Unfortunately, Indian gaming has been used to oppress others.  On this subject I’ve written plenty and need not repeat most of it here.  To put it simply, avarice has begotten numerous civil rights violations and blackened many tribes’ images.  Gaming tribes are seen as duplicitous, greedy, corrupt, and oppressive.  Their use of tribal sovereignty as a means to use their money as they see fit and then hide behind sovereign immunity whenever they want is not an endearing quality.  Many have called for an end to Indian gaming.

The remedies to these problems vary.  Stronger congressional oversight, amending federal laws, partial or total abrogation of tribal sovereignty, more state power to intervene in tribal affairs, and exemption from taxation laws are just some of the proposed solutions.  I honestly don’t know how the problem can be truly solved.  I used to think (and still think) that Congress needs to step in and regulate tribal activity regarding membership despite tribes’ unique place in the law to handle their own membership affairs.  However, I am becoming more convinced that one cannot simply legislate the problem away.

Ultimately, the solution has to come from the Indian tribes themselves.  It’s hard to tell someone to stop acting badly towards others let alone an entire tribe, especially when the ruling families of that tribe firmly believe that they’re right, and in some cases, believe that society as a whole owes them something.  But tribes need to realize that they are part of this society like everyone else and as a pluralistic society, we rise and fall together.  Tribal sovereignty will always have its place, but it should not be a blank check to cast aside their own people over what they believe is an entitlement, whether it is for money or for the unfortunate belief that the disenrolled were never really members of their tribe to begin with.  The Creator does not see things the way they do.