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Tag Archives: tribal sovereign immunity

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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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.

 
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Posted by on November 20, 2012 in Indian Law

 

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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.

 
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Posted by on November 15, 2012 in Indian Law

 

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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.

 
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Posted by on July 29, 2012 in Indian Law

 

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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.

 
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Posted by on July 26, 2012 in Indian Law, tribal sovereignty

 

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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.

 
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Posted by on July 2, 2012 in Indian Law

 

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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.

 
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Posted by on June 13, 2012 in Indian Law

 

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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.”

 

 
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Posted by on May 16, 2012 in Indian Law

 

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So, What if We Gave the Land Back to the Indians?

It’s fun to pretend sometimes.  Which is why this post should not be taken seriously as you would my other posts.  I didn’t really do any research, I just pulled stuff off the top of my head without any real fact-checking because, you know, this was supposed to be a “fun” mental exercise.

Okay, so there’s this thing called the United Nations Declarations on the Rights of Indigenous Peoples that, depending upon whom you ask, is either a really great, symbolic step in the right direction; or just a useless piece of paper that won’t change anything in Indian Country.  In reality, it’s probably a little bit of both. A cursory glance at the document essentially reveals a wish-list of how governments should view their indigenous inhabitants and how they should be treated.  I like the Obama Administration for putting it in play, but it’s up to the federal and state government agencies, our tribes, and our judiciary to really make anything out of it.  Recently, a UN expert (official title: Special Rapporteur on the rights of indigenous peoples) named James Anaya made an announcement about the nature of Native American relations in America, which was later construed to have said that the United States should give the Indians their land back.  (See here, here, here and here.)  Specifically, the Black Hills wherein sits Mt. Rushmore.  Only this gesture will begin true healing between the United States and Indian tribes.  Maybe, maybe not. But this is where my imagination takes flight, what if Anaya actually did say that?  And what if it was just more than the Black Hills?

[EDIT: Of course, Anaya didn't actually say any of that.  But like I said, this is a "pretend" exercise.]

Now, that’s interesting.  The ENTIRE breadth of the United States, or just trust lands currently held by federally recognized tribes?  For simplicity’s sake, I’ll go with the later.  Given the convoluted state of Indian law in this country, turning the lands over to the Indians will make things a helluva lot complicated real fast.  Check this out:

  1. As stated in other posts, the United States holds title to all Indian land as stated in the Marshall Trilogy cases.  These cases, which declared Indian tribes to be “dependent domestic nations” whose survival was the United States’ responsibility, were construed from a shaky reading of the Indian Commerce Clause.  If the United States ceded all federally held trust land to the Indians in fee simple, those Indians communities would then have private ownership of that land and would be free to do what they want with it, without any federal or state oversight.  This is because the United States would have essentially overruled the Marshall Trilogy, turning these “dependent domestic nations” into “independent domestic nations.”
  2. This would suck for the hundreds of federally unrecognized tribes who are, and have been, trying to gain federal recognition status.  The Office of Federal Acknowledgment, as an arm of the Bureau of Indian Affairs, is tasked with overseeing unrecognized tribes’ recognition efforts, and would see their mission of guiding tribes through the process turned upside down.  Now, instead of determining which Indian tribes are eligible to receive federal recognition, the OFA will be considering which pieces of American soil will eventually be conceded to those tribes and converted into foreign soil.  I don’t believe Congress’s delegation of its legislative powers included these duties in the OFA’s job description.  In the meantime, the OFA would essentially have no purpose and would halt all further recognition efforts.
  3. It would also confuse things as to the Indian reservations that straddle State borders, such as the Navajo Nation.  Can you imagine how mad New Mexico would be if it found out that the federal government gave away large portions of its own land (without its permission) and turned it into a pocket of international jurisdiction?  You can almost see the “State’s Rights” people turning red.  And what about tribes whose lands share borders between the United States and Mexico?  Complications.
  4. Indian tribes will no longer be considered US soil.  Anyone wishing to enter, exit, visit, traverse, work, live, conduct business, enter into contracts, get married, have children, or do any activity that requires crossing US/Tribal boundaries will require visas, passports, or some other system.  Non-Indian employees working at casinos on tribal lands are now officially exempt from ALL federal wage and safety requirements, so good bye FMLA, OSHA, FLSA, etc.  How will criminal jurisdiction pan out?  If I rob a bank in Fresno and kill a bunch of people, then all I need to do is run for the nearest Indian rez.  International soil!  Of course, if there’s extradition agreements between the tribe and the United States, then I lose.  There’s other complications too, like the application of the Major Crimes Act and Indian Country Crimes Act for when crime is committed on Indian Country.  If you thought scam emails coming from Russia and Nigeria were annoying, then expect more from tribal lands.  Can’t enforce American copyright laws on Indian Country when the movie studios and record companies discover file sharing websites being run from reservation servers.  For Non-Indians committing crimes in Indian Country: expect arrest and trial according to tribal law; no 8th Amendment protection from cruel and unusual punishment, no 7th Amendment right to trial by jury, let alone a speedy trial or right to competent counsel under the 6th Amendment.  So, be careful next time you get rowdy at an Indian Casino on tribal land.  You no longer have Miranda rights.  (But that blade cuts both ways: any hope of the disenrolled getting some due process under the US Constitution would be gone.)
  5. All federal and state Indian laws would effectively be repealed and inapplicable to Indian Country because the United States can’t legislate on non-US soil.  However, Indians may still be considered American citizens under the Indian Citizenship Act…unless they revoke their citizenship.  How the Indian Civil Rights Act, Indian Child Welfare Act, NAGPRA, Major Crimes Act, and portions of the National Environmental Protection Act and National Historic Preservation Act are going to be construed is now open for debate.
  6. All state and federal case law construing those statutes are probably going to be either abrogated or vastly changed in their application.
  7. Assuming Indians possess only tribal citizenship and not American, claims involving Indians will then fall under the Alien Tort Claims Act, allowing a federal district court to have subject matter jurisdiction over claims involving foreign citizens.
 Are there holes in my logic?  Probably.  Like I said, this was just a mental exercise.  It’s completely useless as to how things would actually happen.  In conclusion, I appreciate Anaya’s work and his efforts.  The UN Declaration is an important document.  And true healing between Native Americans and the United States is long overdue.  As to what ultimate solution Anaya recommends, I would prefer a solution that incorporates the strengthening of tribal sovereignty and ensuring that the United States can provide a meaningful remedy to inter-tribal affairs when violations of US law is committed would be a far more lasting gesture of reconciliation between the two parties.  Simply handing over the land deed from the United States to Indian tribes is overly simplistic.  Like it or not, the United States owns the geographic expanse within its borders and Indians have a unique, although subordinate, status within those borders.  But that does not mean the United States can continue to neglect Native Americans like some unwanted child.  The greatest accord between Indian Country and the United States is one of complete, equal, and mutual respect.  Without it, even giving the land back will not bring the two sovereigns any close together.  It would only build resentment.  But that’s just one guy’s opinion.
 
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Posted by on May 8, 2012 in Indian Law

 

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Protected: Pala Disenrollment Saga Adds Another Chapter

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Posted by on April 2, 2012 in Indian Law, tribal disenrollment

 

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