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

 

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What is the Tillie Hardwick Settlement About?

As if Indian Law weren’t interesting enough, the Tillie Hardwick decision is a nuanced little corner of that world, one that is only of use to California Indians who seek to restore themselves to federally recognized status.  To know more about it, we have to explore the background behind the original court case.

Background: The California Rancheria Act of 1958

Congress passed the California Rancheria Act (“CRA”) in 1958 (Pub. Law 85-671, http://digital.library.okstate.edu/kappler/vol6/html_files/v6p0831.html#mn1), terminating forty-one (41) California Indian tribes or “Rancherias.”  Those Rancherias are: Alexander Valley, Auburn, Big Sandy, Big Valley, Blue Lake, Buena Vista, Cache Creek, Chicken Ranch, Chico, Cloverdale, Cold Springs, Elk Valley, Guidiville, Graton, Greenville, Hopland, Indian Ranch, Lytton, Mark West, Middletown, Montgomery Creek, Mooretown, Nevada City, North Fork, Paskenta, Picayune, Pinoleville, Potter Valley, Quartz Valley, Redding, Redwood Valley, Robinson, Rohnerville, Ruffeys, Scotts Valley, Smith River, Strawberry Valley, Table Bluff, Table Mountain, Upper Lake, and Wilton.

For those unfamiliar with the term “termination,” what it means is that once upon a time, in the 50′s, the United States government ended its fiduciary relationship with Native Americans.  Via legislation, the government wanted to integrate Native Americans into the taxpaying citizenry by removing their tribal sovereignty against state and local ordinances, such as taxes and federally subsidized healthcare.  With almost no prep whatsoever, the government effectively told the Indians they were on their own, dissolved federal Indian reservations and transferring parcels of those lands into Indians hands, making them private property owners.  The problem was that Indians often had no jobs and little income, leaving them at the mercy of state and local taxes and regulations they were unfamiliar with.  In California, the specific legislation introduced was the California Rancheria Act.  I talked generally about the Termination Era in one of my tribal disenrollment articles.

Moving on, the CRA contained provisions on how the United States would dissolve its relationship with each of the Rancherias listed.  Each Rancheria was to draw up distribution plans for each Indian living there and the United States would undertake surveys and infrastructure improvements.  Once the distribution plans were approved and finalized, federal supervision of the Rancherias and the status of tribal members as Indians would terminate.  After termination, title was to be conveyed to those distributees identified in the distribution plan, dissolving both the federal government’s fiduciary duty to the distributees and the distributed land’s exemption from state and local laws, ordinances, and regulations.

Tillie Hardwick, et al. v. United States, et al.

On July 10, 1979, distributees from thirty-four (34) Rancherias terminated under the CRA brought a class action lawsuit in the Northern District of California against the United States and various government officials.  The Hardwick plaintiffs asserted that the United States violated the Rancheria Act in its effort to terminate federal supervision of the tribes.

Specifically, they claimed that the United States failed to inform the distributees properly of the legal consequences of termination, including the fact that the distributees’ lands would be subject to state and local taxation and regulation, and the fact that the distributees no longer would have access to federal progras and protections.   The class was certified to proceed to trial; however, it settled before that could happen.  The settlement was finalized on December 22, 1983.

The settlement divided the terminated Rancherias into three (3) sub-classes.  The first sub-class contain seventeen (17) Rancherias that were restored to federally recognized status: (1) Big Valley; (2) Blue Lake; (3) Buena Vista; (4) Chicken Ranch; (5) Cloverdale; (6) Elk Valley; (7) Greenville; (8) Mooretown; (9) North Fork; (10) Picayune; (11) Pinoleville; (12) Potter Valley; (13) Quartz Valley; (14) Redding; (15) Redwood Valley; (16) Rohnerville; (17) Smith River.

The second sub-class included twelve (12) Rancherias whose claims were dismissed without prejudice: (1) Graton; (2) Scotts Valley; (3) Guideville; (4) Strawberry Valley; (5) Cache Creek; (6) Paskenta; (7) Ruffeys; (8) Mark West; (9) Wilton; (10) El Dorado; (11) Chico; (12) Mission Creek.  They were dismissed because no class member from these Rancherias owned any property within the original Rancheria boundaries.  The property was either sold to non-Indians when the Rancheria was terminated and the proceeds of these sales distributed to Rancheria members in lieu of deeds to individual parcels of property or all of the property originally distributed was subsequently sold to non-Indians. In either case the federal defendants are unwilling to re-assume responsibility for any of these Rancherias without a final judicial determination of their obligation to do so.

The third subclass consists of a number of individuals, some of whom were members of Rancherias included in the second subclass, whose claims were dismissed with prejudice because of the res judicata effect of prior lawsuits.  (Res judicata is a legal term, also known as claim preclusion, which refers to a case in which there has been a final judgment and is no longer subject to appeal; and the legal doctrine meant to bar (or preclude) continued litigation of such cases between the same parties).

Nisenan Maidu Tribe of the Nevada City Rancheria v. Salazar (2011)

Most recently, a listed Rancheria in the CRA is just now attempting to use the Hardwick case to unterminate themselves.

The plaintiff was a former Rancheria that was listed among the 41 Rancherias terminated by the CRA.  They were not amongst the original Hardwick plaintiffs and were attempting to use the Hardwick settlement as a means to “unterminate” themselves.   However, pre-trial discovery had not yet shown whether the plaintiffs were members of the Hardwick class since the only two Indians living within Nevada City Rancheria’s original borders were deceased when the Hardwick lawsuit originally went to court and therefore, could not be served notice to appear.  Presumably, this litigation is still ongoing.

The court also held that the Plaintiff could successfully open the Hardwick settlement to benefit from its ruling if: 1) they could show that it was a member of the Hardwick class; and 2) it would have been in the sub-class of Rancherias actually entitled to relief under Hardwick and not in the one sub-classes of Rancherias whose claims long since have been dismissed, i.e., by 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.  (To my friends familiar with the law, you would essentially do this under a Rule 60(b) motion.)

Conclusion

The Tillie Hardwick case is a very narrow way allowing California Indians to restore themselves to federally recognized status.  Very few can make use of it, but for those who can, it is possible to use this method to achieve federally recognized status rather than going through the onerous route of 28 C.F.R. section 83.7 et. seq.  (Which could be a few blog articles in themselves.  Hmm…)

 

Native America in 2010

This post is by no means a complete and comprehensive summary of what happened in Indian Country this year.  However, I chose to blog about this because it appears that 2010 was a somewhat chaotic year.  There were apparent gains (at least on paper), but there were certainly some losses.

For example, as Indian Country Today (“ICT”) reported, the 2nd Circuit Court of Appeals held in Oneida Indian Nation of New York v. County of Oneida, 617 F.3d 114 (2nd Cir. 2010), that “justified social expectations” over “settled land ownership” allowed local and state governments to keep over 250,000 acres of Oneida land illegally seized in violation of federal treaties.  As ICT put it, Indian land is ok to be stolen “because it would be too inconvenient to those who are currently occupying and benefiting from the lands.”

Outside of the judicial branch, Indians might have some cause to celebrate, but, of course, I always remain skeptical about any beneficial intentions the United States has towards Native Americans.  Native American history is fertile ground for developing a healthy sense of skepticism.

That being said, President Obama (albeit in 2009) noted Native American skepticism and pledged to strengthen support for Native America.  In 2010, President Obama took steps to follow through on his pledge.  In July 2010, the Tribal Law and Order Act (P.L. 111-211) was signed into law (for summaries and background on this Act, please see the Native American Rights Fund’s page).  The Act seeks to reduce violent crime rates that occur in Indian Country, such as domestic violence and rape.

The President also signed legislation that solidified the Cobell settlement, ending one of the largest class action lawsuits in United States history.  For those that don’t know, the Cobell litigation stemmed from Bureau of Indian Affairs mismanagement of Indian trust assets.  Normally, I don’t like citing to Wikipedia; however, it gives a good summary of the case.

Lastly, President Obama stated that he was lending his support to the United Nations Declaration on the Rights of Indigenous Peoples.  One scholar noted that the Declaration grants more power to indigenous peoples than those allowed by the United States Constitution and that, in addition to the non-binding nature of the Declaration, means that adopting the Declaration’s provisions are more for guidance, than mandatory law making.  Another scholar opined that adopting the Declaration “is going to solidify, justify and legitimize its invasion and theft of [Native American] homeland[s].”  Existing U.S. policy is not geared towards the best interests of Indian Country and the Declaration’s moral undertones will give the United States yet another justification to maintain an anti-Indian status quo, and perhaps deprive Indians of their rights even further.

One blogger picked up on this, noting that American policy has allowed gross violations of Indian civil rights committed by Indians against Indians to occur without means of redress because of tribal sovereign immunity.

(As a hilarious [and perhaps ironic] side note, the conservative Right declared and bemoaned with great fury and sadness that Obama was giving America back to Native American “overlords.”  As Chris Rock once said, and I’m paraphrasing: “If [white people] are losing, then who’s winning?  It ain’t us.  I took a little drive around this [expletive] and it ain’t us.”)

In the end, 2010 seemed like a typical year for Native Americans.  Injustices were either underreported or marginalized, and federal courts either denied to hear review of Indian claims or made less than satisfactory law when they did grant review.  However, with Obama in the mix I’d have to say that things could certainly be worse.  Adopting the UN Declaration may or may not pan out well for Indians, but it’s something.  I’ll be honest, I don’t know exactly what adopting the Declaration will mean for Native Americans, but it’s something that previous presidential administrations probably wouldn’t have done.  Settling Cobell was the right thing to do – that slow moving train wreck needed to come to a halt.  Even if there are problems with it, it’s still a god starting point.  Thus far, I wish Obama the best of luck in fulfilling his pledge to support Indian sovereignty however there are some serious problems that still need addressing.

For example, the federal tribal recognition process needs a SERIOUS overhaul.  I mean, I would tear apart the Office of Federal Acknowledgment and rebuild it from the ground up.  Or maybe just jettison the wretched thing into the administrative oblivion and come up with an entirely new plan.

Second, something needs to be done about tribal disenrollment.  Right now.  Like, yesterday, in fact.  One of the things I’ve harped on is an Indian Civil Rights Act amendment to allow some form of dispute resolution for the disenrolled.  Does anyone else have any better ideas?

Let’s hope 2011 is a better year for Native Americans!

———————

Links Cited:

Gale Courey Toensing, Federal courts devastate Indian land rights, treaties, Ind. Country Today (Dec. 31, 2010), available at http://www.indiancountrytoday.com/archive/Federal-courts-devastate-Indian-land-rights-treaties-112388154.html.

Barack Obama, President of the United States, Remarks by the President During the Opening of the Tribal Nations Conference (Nov. 5, 2009).

Lynn Rosenthal, The Tribal Law and Order Act of 2010: A Step Forward for Native Women, Council on Women and Girls (July 29, 2010, 5:13 PM), http://www.whitehouse.gov/blog/2010/07/29/tribal-law-and-order-act-2010-a-step-forward-native-women.

National Indian Law Library, Native American Rights Fund, Tribal Law and Order Act of 2010 (2010), http://www.narf.org/nill/resources/tloa.html.

Greg Guedel, Cobell Settlement Finally Becomes Law, Native American Legal Update (Dec. 10, 2010), http://www.nativelegalupdate.com/2010/12/articles/cobell-settlement-finally-becomes-law/.

Cobell v. Salazar, Wikipedia, http://en.wikipedia.org/wiki/Cobell_v._Salazar (last visited Jan. 2, 2011).

Barack Obama, President of the United States, Remarks by the President at the White House Tribal Nations Conference (Dec. 16, 2010), available at http://www.whitehouse.gov/the-press-office/2010/12/16/remarks-president-white-house-tribal-nations-conference.

United Nations Declaration on the Rights of Indigenous Peoples, United Nations (Sept. 13, 2007), http://www.un.org/esa/socdev/unpfii/en/drip.html.

U.S. to Support UN Declaration on the Rights of Indigenous Peoples, Constitutional Law Prof Blog (Dec. 17, 2010), http://lawprofessors.typepad.com/conlaw/2010/12/us-to-support-un-declaration-on-the-rights-of-indigenous-peoples.html.

Carol Berry, Rights Declaration may mislead, Ind. Country Today (Dec. 31, 2010), available at http://www.indiancountrytoday.com/archive/Rights-Declaration-may-mislead-112665409.html.

President Obama Announces Endorsement of UN Declaration; Will POTUS address issues of Human Rights Abuses in INDIAN COUNTRY?, Original Pechanga (Dec. 18, 2010, 10:51 AM), http://www.originalpechanga.com/2010/12/president-obama-announces-endorsement.html.

Rob Schmidt, Liberals mock UN declaration scare, Newspaper Rock (Dec. 30, 2010, 2:22 PM), http://newspaperrock.bluecorncomics.com/2010/12/liberals-mock-un-declaration-scare.html.

 

Rare (and Published) Ninth Circuit Decision on Tribal Disenrollment

It’s not every day you see the Ninth Circuit hand down an Indian law decision, let alone one dealing with tribal disenrollment.  This blog’s particular attention to tribal disenrollment is well documented, so when I see a new case talking about this subject I am all over it.

The case in question is Jeffredo v. Macarro, — F.3d —, 2009 WL 4912143 (9^th Cir. 2009).  (To read the full opinion, see: http://blogs.findlaw.com/ninth_circuit/2009/12/jeffredo-v-macarro-no-08-55037.html)

For a full analysis, click here; below is a summary of the decision.

The Facts

The Appellants, several members of the Pechanga Band of the Luiseno Mission Indians (“Pechanga Tribe”), were disenrolled for failing to prove their lineal descent as members of the Tribe.  Pursuant to the Pechanga Tribe’s constitution and bylaws, the Enrollment Committee investigated the Appellants because they “received information from its members alleging [the Appellants] were not lineal descendents from the original Pechanga Temecula people.”  Jeffredo at *1.  The Appellants were disenrolled after they failed to make the necessary showing that they were descended from a particular Indian ancestor and were disenrolled on March 16, 2006.  Id. at *2-3.  The Appellants exercised their right to appeal the decision to the Tribal Council; however, they affirmed the Enrollment Committee’s decision.  Id. at *3.  As a result of their disenrollment, the Appellants were denied access to the tribe’s Senior Citizens’ Center, health clinic, and their children could no longer attend the tribe’s school.  Id. at *4.

Procedural Facts

The Appellants obtained counsel (no lawyers are permitted to represent tribal members during disenrollment proceedings according to the Pechanga Tribe’s constitution).  Appellants’ counsel filed a petition for writ of habeas corpus under the Indian Civil Rights Act, 28 U.S.C. §§ 1301 – 1303 (“ICRA”).  Id. at *3.  The Appellants’ theory of recovery was that “their disenrollment by members of the [Tribal Council] was tantamount to unlawful detention.”  Id. at *1.  Specifically, the Appellants argued that “(1) the [effect of the disenrollment’s] actual restraints, (2) the [effect of the disenrollment’s] potential restraints, and (3) their lost Pechanga identity all amount to detention under [the Indian Civil Rights Act].”  Id. at *4.  Also, the Appellants argued that disenrollment was the same as banishment, and that this was analogous to unlawful detention.  Id. at *6.

The Jeffredo Rule Set

The Ninth Circuit has laid out a rule set to determine whether or not a District Court has subject matter jurisdiction to hear a disenrolled Indian’s petition for writ of habeas corpus under ICRA:

1. The disenrolled petitioner must be in custody; AND
2. The disenrolled petitioner must first exhaust tribal remedies; AND
3. The disenrollment proceedings must be criminal and not civil.

A failure to meet any requirement deprives a court of subject matter jurisdiction.  See Id. at *4.  With these rules in mind, the Ninth Circuit proceeds to affirm the Appellants’ disenrollment.

Discussion

Before analyzing the facts of the Appellants’ case, the Ninth Circuit covered a basic principle of Indian law.  It cited Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978), and Cherokee Intermarriage Cases, 203 U.S. 706 (1906), in stating that “[a] tribe’s rights to define its own membership for tribal purposes has long been recognized as central to its existence as an independent political community.”  Santa Clara Pueblo, 436 U.S. at 72 n.32.

The Ninth Circuit ruled that disenrollment is not considered custody under the Indian Civil Rights Act.  The Appellants’ disenrollment was not actual custody because being denied access to certain tribal facilities was not severe enough.  The Appellants’ disenrollments were also not considered custody because the disenrollment’s potential threat of future detainment was neither severe nor immediate enough.  The most interesting and creative argument that the Appellants’ counsel made was that the loss of tribal identity itself was severe enough to constitute as detention under ICRA.

While the Court had “the most sympathy,” for the reality that disenrolling Appellants effectively terminated their political existence as Native Americans, there was no “precedent for the proposition that disenrollment alone is sufficient to be considered detention under [the Indian Civil Rights Act.]”  Id.  Santa Clara Pueblo’s precedent cannot be ignored by courts in order to give federal courts jurisdiction to hear disenrollment proceedings, nor can the Court expand the “scope of the writ of habeas corpus to cover the exact same subject matter.”  Jeffredo. at *5-6.  The legislative history behind the Indian Civil Rights Act’s habeas remedy does not support the granting of subject matter jurisdiction to federal courts to review disenrollment proceedings.  Id. at *6.

Also, the Appellants’ failed to exhaust their remedies with regards to their claim that disenrollment constituted banishment, and thus making the argument that disenrollment was equivalent to custody.  Because of the Appellants’ failure to bring this claim at the tribal level, the Ninth Circuit declined to analyze this issue.  The dissent noted that this conclusion was in error because the Appellants were “not asserting jurisdiction based on any exclusion or eviction from the Pechanga Reservation[, but rather], Appellants’ claim of jurisdiction . . . based on the restraints on their liberty arising from being disenrolled and threatened with exclusion.”  Id. at * 12.

The Ninth Circuit also ruled that disenrollment proceedings were not criminal in nature, but were civil and therefore, the Appellants’ failed to establish the third prong of the rule set outlined at the beginning of the case.  The Court felt that a broad interpretation of the ICRA habeas remedy would be “inconsistent with the principle of broad, unreviewable tribal sovereignty in all but criminal cases involving physical detention.”  Id. at *7.  Furthermore, courts give great deference to tribes concerning matters of enrollment and tribal membership because of “the often vast gulf between tribal traditions and those with which federal courts are more intimately familiar,” and that “the judiciary should not rush to create causes of action that would intrude on these delicate matters.”  Id. (citing Santa Clara Pueblo, 436 U.S. at 72 n.32).

Based on the above holding, the Appellants’ disenrollment was affirmed.

Now What?

As the Original Pechanga Blog notes: “The group can seek to have Tuesday’s decision re-heard by a larger group of 9th Circuit judges.  They can ultimately appeal the case to the U.S. Supreme Court.”  Off hand, I don’t know how successful appellants are in being granted a full en banc hearing, or whether the cost of bringing a lawsuit further into appellate court would discourage such petitions, but this could be an option.  As for the Supreme Court, I have a good feeling the Roberts-lead SCOTUS will flush this case either through denying certiorari or affirming the Ninth Circuit without comment.  Granting cert wouldn’t inspire me with much hope either since a published decision would reinforce already stagnant (and inherently racist) law, but would extend such law into the area of disenrollment.

All in all, the Ninth Circuit’s ruling is not very surprising other than it being published.  Is it fair?  No.  Not in the slightest.  As the dissent points out, Pechanga’s disenrollment procedures were never used on a large scale “until recently, when the Tribe’s casino profits became a major source of revenue,” and “every adult Pechangan received a per capita benefit of over $250,000 per year.”  Jeffredo, — F.3d —, *8 & *8 n.1 (Wilken, J., dissenting).  What the Jeffredo decision illustrates is the clear lack of any Indian’s Constitutional rights to procedural due process in the United States.  Indians are Americans too, and all Americans have basic rights to life, liberty and property.  What could be more detrimental to an Indians’ liberty interest than their loss of tribal identity?  No court of law can ever grant a good decision to a disenrolled Indian so long as they follow Santa Clara Pueblo‘s precedent that Indian membership can only be handled by Indians only.

The dissent makes the clear analogy between disenrollment and denaturalization, and using denaturalization as a form of punishment is:

[M]ore primitive than torture, for it destroys for the individual the political existence that was centuries in the development.  . . .  This punishment is offensive to cardinal principles for which the Constitution stands.  It subjects the individual to a fate of ever-increasing fear and distress.  He knows not what discriminations may be established against him, what proscriptions may be directed against him, and when and for what cause his existence in his native land may be terminated.  He may be subject to banishment, a fate universally decried by civilized people[.]  It is no answer to suggest that all the disastrous consequences of this fate may not be brought to bear on a stateless person.  The threat makes the punishment obnoxious.

While the Court had “the most sympathy,” for the reality that disenrolling Appellants
effectively terminated their political existence as Native Americans, there was no
“precedent for the proposition that disenrollment alone is sufficient to be considered
detention under [the Indian Civil Rights Act.]” Id. Santa Clara Pueblo’s precedent
cannot be ignored by courts in order to give federal courts jurisdiction to hear
disenrollment proceedings, nor can the Court expand the “scope of the writ of habeas
corpus to cover the exact same subject matter.” Jeffredo. at *5-6. The legislative history
behind the Indian Civil Rights Act’s habeas remedy does not support the granting of
subject matter jurisdiction to federal courts to review disenrollment proceedings. Id. at
*6.