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. 

 

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.

 

Bragdon/Chukchansi Lawsuit Update (7-29-2012)

On July 10, 2012, the plaintiffs and the United States have stipulated (i.e., came to an agreement) to extended deadlines for filing the opposition to the plaintiff’s motion to enforce judgment that was highlighted in the recent news story regarding the Chukchansi casino.  The United States requested, and the plaintiff’s agreed, that to adequately prepare a defense and gather appropriate documentation, their deadline for filing an opposition to the plaintiff’s motion be extended to September 7, 2012.  The plaintiff’s reply will be filed by September 28, 2012.

 

Can There Be Cases Where Disenrollment Is Proper?

On vacation this week.  But while I’m away I thought of something.

On this blog, and others, I have repeatedly denounced the use of banishment and disenrollment as a means for unscrupulous tribal councils and factions to get rid of members of their own community based on little more than greed, petty family strife, and plain old petulance.  The so-called “Paper Genocide” — (a term I dislike, but can’t think of a replacement right this second) — has claimed thousands of Native Americans’ identities, leaving many of them without access to subsidized health care, tribal schools, various services and casino money allotments.  Currently, it is one of the great legal crises that is going on in America and more people need to be aware of it.  Congress must do something about it.  I’ve repeated these sentiments ad nauseum.

But, out of an abundance of fairness, I must ask: has there ever been a case where someone who was disenrolled actually deserve it?  Put another way, has any Indian ever been banished or disenrolled as the result of a legitimate, non-nefarious purpose?  I would appreciate some historical practices and examples as well.

The thing is, however, it’s hard to disentangle disenrollments that were made AFTER the tribe’s casino was built, or any time after the Indian Gaming Regulatory Act was passed.  The core excuse I’ve heard to date about why tribal councils want to disenroll their own members it that they’re just correcting their paper work.  Of course, the retort is that why should tribes care now what their paperwork says when they’ve had decades prior to the passage of the Indian Gaming Regulatory Act to correct it.  At this point, it’s almost as if any disenrollment made after IGRA was passed is presumed to be tainted.

But, if there’s another way of looking at it, please clue me in.

 

Who Rules Chukchansi?

Marc Benjamin of the Fresno Bee wrote an interesting piece regarding a new lawsuit filed in the Northern District of California against Picayune Rancheria.

Link: www.fresnobee.com/2012/07/07/2902338/chukchansi-family-files-suit-against.html

This lawsuit is grounded in the 1979 Tillie Hardwick litigation (my post here) that effectively un-terminated several California rancherias from Congress’ California Rancheria Act of 1958.  Any member of a terminated tribe can regain federal recognition if they can show that they (or their ancestors) was a member of the original Tillie Hardwick class that filed suit against the United States back in the 70′s/80′s; and, demonstrating that at the time of the Hardwick settlement, at least one class member from the Rancheria owned real property within the original Rancheria boundaries.

That is what the plaintiffs are doing in this case, claiming that their ancestor, Maryan Ramirez, was a Chukchansi Indian who was an original class member, was the only person entitled to establish the tribal government of Chukchansi.  However, when Ramirez died, her family declined to negotiate with the BIA over how to re-establish the tribal government.  Then, another family stepped in and negotiated with the BIA — whose ancestor was not an original Tillie Hardwick class member — and established the rancheria we all know today. Now, Ramirez’s descendants have filed suit to assert their rightful claim to the government.

I have no clue why they waited so long, but this will prove to be interesting.

The motion to enforce the judgment was filed on June 7, 2012 along with several, voluminous exhibits that I haven’t had time to sort through yet.

Ramirez Motion to Enforce

Request for Judicial Notice
RJN Exhibits 1
RJN Exhibits 2

Bragdon Decl
Bragdon Decl Exhibit 1

 

Article on the Indian Civil Rights Act

Chippewa counsel and law professor Harold Monteau has published a short piece for Indian Country Today telling us (the readers of this blog — all six of you) what we already know: Indian Civil Rights Act Has Done Nothing for Individual Indians’ Rights.

 

Clarence Thomas on the Indian Commerce Clause

Tip off to Turtle Talk for bringing this to my attention.

Salvatori Professor of American Constitutionalism, Ralph A. Rossum, has authored a fascinating piece about Justice Clarence Thomas and his originalist view of the Indian Commerce Clause.  I highly recommend it.

First, some background.  The Indian Commerce Clause (covered here) is a subset of the full Commerce Clause that resides at Article I, section 8, clause 3 of the US Constitution:

To regulate Commerce with foreign Nations, and among the several States, and
with the Indian Tribes;

More well known is the Commerce Clause’s use in regulating economic activity among the states, the Indian Commerce Clause has been interpreted as a means through which Congress has the plenary power to legislate exclusively in Indian affairs, a power which no other branch of government (or inferior legislatures, unless it’s a PL-280 jurisdiction) may possess.

Next, let’s turn to Justice Thomas.  Quoting from Rossum’s article directly, here’s this:

Concurring in the judgment [of United States v. Lara], [Justice] Thomas declared, ‘I cannot agree that the Indian Commerce Clause ‘provides Congress with plenary power to legislate in the field of Indian Affairs.’  He found [the Supreme Court's decision], based on decades of relevant precedent, ‘implausible,’ ‘troubling,’ and ‘very strained,” and, wishing to restore the original understanding of the Indian Commerce Clause, he indicated that he ‘would be willing to revisit the question.’

Direct opposite of what I just said, right?  Rossum moves on to say that Thomas’ originalist view is incorrect and presents evidence of the early documents surrounding the Indian Commerce Clause, concluding that the true originalist view is exactly what the decades of precedent said it was.

Beginning with the Articles of Confederation and working his way through the Northwest Ordinance, the Federalist Papers (specifically, #42), and early legislative acts by the First Congress, Professor Rossum shows that when Congress sought to legislate with Indians, it did so “predicated on the assumption that the federal government has plenary power over Indian tribes.”  Rossum, at p. 815.

Rossum next brings together Justice Thomas’ narrow view of interpreting law towards Native Americans with Thomas’ refusal to apply judicial canons of statutory construction that, by default, should always favor the Indians, given their “dependent domestic nation” status.  Thomas routinely ignores these canons, but Rossum doesn’t exactly explain why, except to say that Thomas is focused more on maintaining the federalist structure of our government rather than acknowledge the significance of Native American identity within that federalist structure.  See Rossum, at p. 821.  This leads Thomas to view statutes and treaties narrowly, which explains his disastrous Carcieri v. Salazar opinion wherein he construed the text of the Indian Reorganization Act so narrowly that he effectively gutted it of its power.

Rossum repeatedly tells us that Thomas has a narrow view of interpreting Indian statutes and treaty, but does not call Thomas narrow-minded.  In fact, in the article’s conclusion, Rossum tries to save Thomas from scorn by basically stating that he slowly learns from his mistakes as he “has always and faithfully pursued an originalist understanding [of the Indian Commerce Clause].”  Rossum at p. 826.  But Thomas is very much a slow learner.

I don’t see how an educated and intelligent man of Thomas’ caliber cannot see how the case law, beginning with the Marshall trilogy, and the volumes of scholarship that has been produced on it, has done nothing but cast Indians in an inferior, subordinate, and infantilized role that has stymied their development as full, respected citizens of the United States.  Furthermore, the racist overtones that linger on today in Indian Law jurisprudence cannot but help to remind people like Clarence Thomas — an African American — that we anxiously await our Brown v. Board of Education.  Indian law is still vexed by tiny little splinters of Indian law’s own versions of Plessy v. Ferguson and Dred Scot v. Sanford.  Perhaps if Thomas is still learning to adopt a true originalist stance then maybe he will one day accept the canons of judicial construction that are supposed to favor Indian tribes.  I won’t be holding my breath though.

In the meantime, Rossum’s article is highly thought-provoking and I encourage you to read it.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2085080

 

The Indian Civil Rights Act: Does the Fun Ever Start?

A new book has hit the shelves and I suggest you take a look at it.  I know I will, eventually.  Not just for what it says, but for what it probably won’t say: the Indian Civil Rights Act is completely useless to any unfairly disenrolled Indian seeking to regain their tribal citizenship.

As I’ve hit on in this post, and this post, the only remedy available under ICRA is habeas corpus, which many attorneys have tried to get creative in squeezing banishment and disenrollment under the definition of criminal custody to no avail.  Even though the ICRA ports a version of our Due Process clause into Indian Country, the SCOTUS decision in Santa Clara v. Pueblo puts an end to anyone challenging a tribe’s definition of membership, allowing tribal councils to disenroll anyone they want.

So, 40 years after its passage, several authors banded together to write a collection of essays examining various imprints ICRA has left on Indian Country.  The Original Pechanga blog parroted the review, adding to the post title “A Mostly Toothless Law Trusting Tribes to Act Responsibly.”

I definitely want to read this book.  Some serious scholarship went into compiling these essays and it will be interesting to see what the results are.  The thesis of the book review cited above is simply this: “Together, this set of essays argues that the extension of rights to the American Indian tribes has adapted well, so long as each tribe has been free to interpret the Act within its own traditions.”

Well, there’s a problem with that.  Treating your own people with complete disdain as you strip them of their citizenship out of petty family politics in order to reap larger casino profits isn’t something I’d call a tribe’s “traditions.”  In fact, it’s fairly obvious that it is non-Indian.  Judging by the text of the review, some chapters attempt to paint a rosy picture of tribal self-determination while others don’t shy away from ICRA failures to make any positive dent in Indian Country.  Even if Indian Country has benefited somewhat from having ICRA around — what would have it been like without ICRA? — the reality is anything but a sense of “Mission Accomplished.”  And after 40 years of ICRA, Indian Country has yet to be separated from the volumes of racially insensitive case law that keeps Indian Law jurisprudence in a state of profoundly embarrassing infancy, hindering any hope of Native Americans to be fully treated to the equal protection of the laws with complete and total due process.

 

Local News Report on Pala and Pechanga Disenrollments

Rick Cuevas, the owner of the Original Pechanga blog has posted a video clip of a local CBS news story in which he himself participated in, addressing tribal disenrollment.

Please click on the link to watch the video: http://www.originalpechanga.com/2012/05/kcbs-2-reports-on-pechanga-and-pala.html

If for some reason the link doesn’t work, you can watch it here:

KCBS 2 Reports On Pechanga and Pala Disenrollments

One of the more poignant quotes:

“Your whole community turns away from you. And they look at you like a pariah.”