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Why I Stopped Writing

Hello there!

Well, it’s been an interesting past few months.  Not that you’d know if all you knew of me was what I wrote on this blog because I haven’t written anything lately.  Notes has remained on my mind throughout my self-imposed hiatus and I’ve always been wondering what to write next, but nothing ever really came through.  It’s not for a dearth of material, that’s for sure.  Certain gaming tribes continue to make a mess of things and abuse their sovereignty by disenrolling their members.  The Chukchansi tribe is currently in a train-wreck of a situation and a couple federal agencies have finally done something about it.  I think, however, I stopped writing for a reason, one that I think was always on my mind subconsciously, but now I think it’s time to hoist it to the forefront.

The reason I’ve stopped writing is because I have nothing else more to say. 

First of all, I’m not Rick Cuevas, proprietor of the Original Pechanga Blog, who can always find an angle on tribal disenrollment to write about.  The man is a machine and ceaselessly rings the warning bell about the injustice brought about by tribal corruption.

Second, and more importantly, if the purpose of this blog was to analyze the legal aspects of tribal disenrollment, then I’m pretty sure I’ve done that by now.  The law of tribal sovereignty can be very convoluted at times, but the law surrounding tribal disenrollment is pretty clear-cut, thanks to Santa Clara Pueblo and numerous decision in California state and federal courts.  If your tribe wants you gone, then there’s little stopping them from doing it.  Courts can’t do anything about it; Congress can, but they won’t, or at least not in the foreseeable future.  Of course, I would love to be proven wrong about this, but I’m just not liking what I see so far.

I think I’ve nailed down the broad strokes in my Legality articles, and if you’re interested for more nuanced posts, then there’s my First Time Here? section where you can get caught up to speed. 

Third, if we’re being frank, I’ve simply lost my passion for writing about this subject.  Indian law will always remain a passion for me, but it’s always been a dismal task writing about the sorrows of people who you know deserve justice and knowing that the law has foreclosed any meaningful access to justice.  Reading case law that further hammers home that point is equally dismal. 

Fourth, and finally, I want to write about other things.  There are other areas of Indian law out there and who knows, I’ve always been meaning to begin writing stuff about Yosemite.  That’s an entirely different mess and I haven’t really seen much coverage on it.  Or maybe just something else completely.  Who knows.

I’ve made some great friends through this blog and I hope people out there will still find it useful, but as for new content I think I’m going to take a very long vacation from it.  I wish you all the best, and as I said in one of my prior articles:

In particular, I would like to thank the disenrolled Native Americans who have stopped by to read and offer their two cents on the whole affair.  I would like to dedicate these articles to you and along with my thanks, wish you the best and hope that you one day get the justice that many of you, whether you are in California or any other state, deserve.  You will always be an Indian, no matter what any person says and no one can take that away from you.

 
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Posted by on September 19, 2013 in Uncategorized

 

Chukchansi: Do They Care?

Haven’t posted much lately.  That’s more to do with life and career, and not so much lack of attention on the unfolding cluster**** going on at Picayune.

My friend, and blogger, Rick Cuevas of the Original Pechanga blog nails it on the head with a short editorial in the Sierra Star:

We’ve read so much about the issues at the Picayune Rancheria of Chukchansi Indians. Does anyone really believe that the three groups led by Morris Reid, Nancy Ayala and Reggie Lewis have the best interest of the tribe as their priority, or the best interest of themselves?

All three of these so-called leaders were proponents of the first disenrollments in the tribe in 1999 and 2006. They cut 800 tribal members from their heritage and rights as Native Americans. Is that what someone who purports to care about the tribe does? I think not.

These actions against their own people and those subsequent disenrollments documented by the Sierra Star, have led to violence and huge police presence to protect Chukchansi’s shrinking number of citizens from their own leaders. Is this what was meant by tribal self reliance?

Nancy Ayala wants to limit the Chukchansi membership to 46 people. Is she serious? Taking a once prominent tribe to such a small number is unconscionable. A real leader would be making it tribe stronger, by restoring their membership to 1998 levels and enrolling any who rightfully belong.

All three “leaders” are culpable in the destruction of the Chukchansi tribe. Yet blinded by their own ambitions, they can’t see the damage they are doing with their depopulation efforts.

Help these leaders see the light. How, you ask? Ask your congressperson to set up field hearings on the issue. Ask for enforcement in the Indian Civil Rights Act. And most important, do not feed the greed.

Simply quit going to Chukchansi Gold Resort and Casino. Dry up the income stream and let them know why you are no longer coming. Let them know you refuse to support their corruption and greed.

But what about sovereignty, you may ask? Yes, they are a sovereign nation, but then, so was South Africa, and we used moral persuasion to get them to eliminate apartheid. You can do the same at Chukchansi. Let them know you expect them to act humanely towards their people or they won’t get your entertainment dollars. Help them to see that being corrupt is not a long term solution.

Bring all the Chukchansi people home.

— Rick Cuevas writes Original Pechanga’s Blog originalpechanga.com) which focuses on tribal disenrollment issues.

 
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Posted by on June 28, 2013 in Uncategorized

 

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Lawsuit Over Hantavirus in Yosemite

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.

 
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Posted by on April 30, 2013 in yosemite

 

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

Erick:

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

Originally posted on TED Blog:

Dan-Ariely“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.”

[ted_talkteaser id=1706]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. In his talk, Ariely provides evidence that we are also driven by meaningful work, by others’ acknowledgement and by the amount of effort we’ve put in: the harder the task is, the prouder we are.

During the Industrial Revolution, Ariely points out, Adam Smith’s efficiency-oriented, assembly-line approach made sense. But it doesn’t work as well in today’s knowledge economy. Instead, Ariely upholds Karl Marx’s concept that we care much more about…

View original 1,168 more words

 
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Posted by on April 10, 2013 in Uncategorized

 

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.

 
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Posted by on April 5, 2013 in Uncategorized

 

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. 

 
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Posted by on March 13, 2013 in Indian Law

 

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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

 
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Posted by on February 11, 2013 in Uncategorized

 
 
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