Friday, April 10, 2015
CA Appeals Court SCOFFS at Congress's Inaction to Protect Natives From Corruption. Senators Barrasso, Feinstein and Boxer, ARE YOU PAYING ATTENTION
I have the video here of the recent court of appeals case where the Pala Tribe was sued for their corruption. The Justices all want to help, but there's very little leeway for them to act. WHY? Because Congress has failed to act.
As Pala's OWN attorney states, "...The Supreme Court invited Congress to STEP in, to which, the judge scoffed, "YOU CAN'T GET CONGRESS TO DO ANYTHING" Burn. This is a good case to watch, the pertinent portion above is at the 27:00 mark.
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23 comments:
After listening to the reasoning of the justice's it appears that the issue of detainment or exclusion by the tribe is the key point. I understand the reasoning that if the tribe had not disenrolled the family they would not have been excluded. Now what I believe is possible is that those from Pechanga who have allotments who are now excluded from their property have a valid case because they are still holders of the allotment, yet the tribe has discriminated and is not allowing them to go to their property. This is applies to the Toshiba's. Now for the Hunters and others that still live on the reservation who are not allowed to use the facilities, parks, and other public places have been discriminated and excluded. Last is the discrimination of the water rights and the tribe charging only those who are not members. As Pechanga allotte's I believe they have the same right to the standard fee that all allotte's must pay regardless of membership. It is the continuance of the family on the allotment that allows for a suit of discrimination, detainment, and exclusion.
I do not believe the tribes lawyer when she says the plaintiffs, the disenrolled, can go to the general membership in seatrain circumstances to have the general membership decide the matter. I think this is false becasue3 when you are disenrolled you have no rights. This means you can not go to meeting to plead your case. You can not put the matter on the agenda, you can not call for a vote. There according to what was said no impartial remedy for the plaintiff.
White Buffalo,
As one of the plaintiff's in this matter, it was our assertion that the Pala EC acted outside their authority in terminating our membership. We only wanted a chance to have our arguments heard and present evidence.
The problem here is that the Court ruled that the tribal officers were acting in their official capacity when they violated the Constitution, violated a 1984 General Council Decision, and violated the 1989 Final Decision of the AS-IA. They officially violated their vows of office, the laws of the tribe, and usurped the power of the General Council, but the Court ruled that it is part of their job to violate everything that gives them their power and authority.
Because they were so good at violating tribal law, General Council decisions, and the decisions of the AS-IA they are entitled to sovereign immunity. Federal Law gives deference to violators, and the more powerfully they violate tribal law, the more necessary it is to offer them immunity and to give them deference.
When the attorney for the defense says that disenrollees can plead with the General Membership to act on their behalf it is a blatant and outright lie. What disenrolled members have any access to their tribal government? That is a big part of disenrollment. The tribal leaders do not want disenrollees participating in tribal government. They kicked them out because they wanted to eliminate opposition.
How the heck can you state your case when the Court dismisses your litigation without hearing your arguments and seeing your evidence? That is the state of law in Indian Country. Your inviolable rights can be violated with impunity. Violators receive deference. Sovereign immunity protects criminal actions. Individual Indians get no recourse or remedy.
Then they blame Congress...
This is an absolute disgrace to Indian Country. Pechanga, Pala and other tribes that have faced disenrollment through corruption, please come and joint the San Pasqual in their protests and requests for hearings before the Senate Committee on Indian Affairs.
Do these people that practice disenrollment really think they are fooling people when they say it's not "about money"? Why then were there not rampant disenrollments prior to Indian gaming?
Reinstatement_Restitution, I understand your argument and I am not in disagreement. We Miranda's have been through this. In 2004 in the Riverside Superior court Judge Fields ruled in our favor that our case had merit and the substance of our motion could be heard in court. Pechanga appealed and we lost because of the Santa Clara Pueblo v. Martinez president. We believed and appealed the appeal all the way to the Supreme court where they declined to hear the case because as they stated this issues was too important a matter and the did not want to legislate from the bench. In all of the summaries the justices agreed that our case was sound and that there needs to be a practical remedy to have such issues adjudicated by an impartial body where a binding decision could be enforced. As you know we lost and we and the tribes spent a ton of money. The tribes have to win or their whole system would collapse under the weight of all of the judgments against them. Again it goes back to the will of congress to act and close the loophole the tribes are currently using. I have see similar cases where the tribe has fired their court justices or simply did away with their tribal courts just so they could take advantage of sovereign immunity. I did not mention that in most cases Santa Clara Pueblo v. Martinez is misused and the courts are allowing it.
White Buffalo,
That is why I wish I knew then what I know now. We though we could sue the tribal officers because tribal sovereignty should not protect them when they are acting outside their authority. We also hoped that the court would hear our case because we had no other recourse. Obviously the court disagreed and dismissed the case.
If I could do it over again I would charge the tribal officers with civil rights violations. I may still do so at a later date, but that would interfere with other ongoing efforts.
Someone has to challenge this system of protection for corrupt and criminal tribal leaders. A simple victory in an election is not an endorsement from the general membership for all their corrupt actions. They do no represent the tribe when the violate tribal law, general council decisions, and their vows of office. It is plain and simple, but must be removed from the context of a membership dispute so that the court will not resort to Santa Clara Pueblos v. Martinez so they can avoid doing the right thing for individual Indians.
Remember too that the tribes lawyer Sarah Dutschke is the niece to Amy Dutschke and Amy is the Regional Director of the BIA in Sacramento, Amy is also friends with Robert Smith, and Sarah used to work with Amy. She knows the ins and outs and what Robert can get away with, for instance it was a civil suit against the Individual Committee Members, yet they used the tribes lawyers and the tribes money for all of them.
That's because the Pala EC claimed that they were acting in their official capacity as tribal officers, under the authority of the General Council, exercising the sovereign rights of the nation.
We alleged that they were acting outside tribal law in violation of the Constitution and the General Council decision. We believe that if there had been a trial we would have been able to present our evidence and arguments and would have prevailed.
The Pala EC have no evidence. They cannot prove they were acting to uphold the Constitution and to enact the decision of the General Council. That is why they claimed sovereignty, hoping the court would dismiss so they wouldn't have been forced to answer the allegations.
The courts have repeatedly ruled that tribes are sovereign and can't be sued. The courts have also ruled that tribes have the right to determine their own membership.
We knew this going in. Our assertion is that there is a difference between the Tribe and the tribal officers. Tribal officers only represent the tribe when they uphold the tribe's laws, and act within the authority of the powers delegated to them by the General Council.
The Pala EC was trying to avoid answering these allegations and they succeeded because the court would rather not deal with these issues. It is buck passing of the highest order.
The BIA says they have no jurisdiction and wait for the court to tell them what to do. The court says they have no jurisdiction and waits for Congress to tell them what to do. Congress says it is up to the Department of the Interior. And then it all shifts back to Congress.
You can't get the representatives in Congress to agree on anything that will improve the situation. It isn't important to them. They want to play partisan politics, and there are no partisan issues involved in Indian Country.
There are some other options though, and exploring the implications of acting as U.S. Citizens rather than as disenfranchised Indians will give disenrollees a better position to get some cooperation from the courts. We just need to wrap our minds around this idea that though we are Indians, that we have the same rights as any U.S. Citizen. We should be able to get a hearing if we are the harmed party and file a complaint against the individuals that harm us.
U.S. Citizens are not subject to tribal law, and Santa Clara Pueblos v. Martinez has no application in such matters. We need to remove the matter from the purview of a membership dispute, and tell the court we know the tribe can decide membership status, and are not disputing that right. What the tribe cannot do is deny U.S. Citizens their civil rights.
And neither can the federal government. Each time the BIA issues a decision that allows a tribe to violate disenrollees civil rights, they are conspiring with that tribe. These decisions can be remanded on this principle if only disenrollees file their appeals to address the violation of civil rights.
Instead all disenrollees appeal the decision to disenroll. The BIA counts on this, and knows they can side with the tribe and wash their hands of it.
We can be smarter. Maybe this idea won't work. It hasn't been used. For us, we have already received final agency action and the option is not available. That is not the case with those who face current disenrollment actions.
If you have written letters and sent emails to Chairman Barrasso and the rest of the committee you have probably received and answer that essentially says that you and your comment will not considered because you are not a constituent. That is passing the buck when the in reality these committees represent all of the Indian nations and their people who claim ancestry to an Indian tribe. This is just one of many barriers that we face. Class actions suits are fine if they can be paid for, but the reality is who has that kind of money. I know that the BIA and the DOI are not going to do anything that is proactive. I also know they have the authority to sanction tribes who do not follow their own constitutions and bylaws. They do not enforce these rules because of tribal influence and as I stated is because the poli\tical power behind the agency does not want them to because of tribal influence and campaign support from the tribes. It is not that difficult to understand nor is it that complicated. This is why it is so hard to deal with. Human nature and the corruption of human nature are hard to overcome.
Maybe you should go after Smith and punish him in a state court (criminal way hey ) .
Non Indian against , him . State court has Jurisdiction , The U.S. Supreme Court ruled in United States v. McBratney, 104 U.S. 621 (1881), and Draper v. United States, 164 U.S. 240 (1896), that state courts have jurisdiction to punish wholly non-Indian crimes in Indian country.
God he's smart, you mean its conspiracy against us? Hey !
Is conspiracy a crime hey ?
I am working on a more informative type of review and will share it when it is complete. In the meantime let's talk about conspiracy. Conspiracy to commit fraud occurs when..."two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy."
The general federal conspiracy statute is 18 U.S.C. § 371. This statute criminalizes both conspiracies to defraud the United States as well as conspiracies to violate any other provision of federal law.
So what federal laws have been violated through the relationship of the BIA and tribal leaders in disenrollment actions. Are amendments to the Constitution federal law? I am pretty sure that they qualify as law. So when the BIA and Tribes (tribal officers) work together to violate the civil rights of tribal members that is a conspiracy.
Anyone want to prosecute? There is the problem. The U.S. Attorney General has zero interest in prosecuting the BIA for their involvement. The DOJ will not investigate because they view tribes a sovereigns and immune to such prosecution.
But these are criminal acts! They meet the definition in every way you can think of. Can individuals swear out a complaint and press charges? Not in Federal Court. But individuals can report violations to the DOJ.
So where does that leave us? It leaves us without much in the way of case law or precedent upon which to base decisions. You know the routine. The judge does not want to legislate from the bench. Any damn excuse they can think of to avoid helping the injured and harmed parties.
Are Indians so detestable that they must be mistreated at every turn and by every agency, office, representative, and judge? I wish they would respond to these questions. All they do is pretend that Indians are not entitled to the protections of the law. Indians are subject to the law and authority of the tribe, and the tribe wants to terminate them.
So that is why when it comes time to file appeals or to litigate, Indians must demand treatment as U.S. Citizens. If they aren't tribal members because of an action of the tribe, then the tribe has no authority over them, and tribal law does not apply.
Next time the BIA tries to say tribal law is controlling law over disenrollment, have your lawyer point out that tribal law only applies to tribal members. If you are not appealing disenrollment, and instead are appealing the BIA action to cooperate with the violation of your civil rights then the BIA can not issue a decision based on tribal law. Non-members have rights and the agency employees must respect them.
I can hear it now. The BIA will say they have no jurisdiction, and that they are not participating in or cooperating with the violation of civil rights. Then theyshould provide you with prior notice of the offense you have committed, and of what action(s) they plan to take and what grounds that action is based on. Then they should provide a hearing and allow you to present evidence, and whatever else is necessary to fulfill the requirements of due process.
In my opinion the BIA appeal process is inherently a violation of due process because appellants get no hearing. But the BIA is not a court, they can't provide judicial review or facilitate a tribunal. Maybe they should revise their policies and procedures because there might be some smart Indians coming up who can call them on their failure to provide due process. And we haven't even touched on equal protection under the law yet.
They can put that in their pipe and smoke it.
Try this writ of habeas in court not the Indian one.
28 U.S. Code § 2254 - State custody; remedies in Federal courts
(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
(b)
(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that—
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)
(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
Habeas Corpus applies to those in custody. Tribes normally don't detain disenrollees in order to avoid hearings and court appearances. Of course if a tribe does detain someone on grounds of disenrollment, or perhaps trespassing due to disenrollment, then a writ of habeas will provide recourse to a hearing, and would open the door to prosecution for civil rights violation and then it could be prosecuted as a violation of the ICRA and U.S. Citizens are not entitled to the provisions of the ICRA.
This is why we need to think this out and be careful how we proceed with allegations of civil rights violations. The courts may rule that individuals who seek remedies against tribes while claiming the rights of U.S. Citizens are seeking to avoid the requirements of tribal law.
The latest post on the blog regarding the NNABA Resolution stating that it is immoral and unethical to advocate the restriction of the right to tribal membership without equal protection under the law or provision of due process shows that others are beginning to understand the implications of civil rights violations in disenrollment disputes. This is exactly what I am talking about, and now we have to develop a means to obtain remedy for the harm and injury that has been inflicted through the violation of civil rights.
There is also this concept of the right to tribal citizenship, and restriction, divestment, or the revocation thereof. It will all tie together I hope, but I believe we need to grasp one concept at a time. The one concept that shifts culpability to the parties that inflict harm and injury, specifically the tribal leaders and the BIA, is that of disenrolled Indians claiming tribal law does not pertain to them because they are U.S. Citizens.
Then it becomes a matter of interpretation. If you were a tribal member before the disenrollment then you were subject to tribal law. After the disenrollment you are not subject to tribal law. At which point were your civil rights violated? Was it as a tribal member, and do tribes have the power to violate civil rights?
Or will the court just throw up its hands and say they have no jurisdiction and cannot legislate from the bench.
We will sort it out to the best of our ability. Let those with deep legal knowledge chime in. I say that it doesn't matter at which point the civil rights violation occurs. Tribal members are U.S. Citizens both before and after disenrollment, and the tribe must provide for the protection of U.S. Citizens even if it is not explicitly stated in tribal law.
It is not a lightswitch that you can turn on and off. Once you are a U.S. Citizen you have inalienable rights, and those rights don't go away just because you are on a reservation. Now we get into the murky waters of tribal sovereignty. Are sovereign tribes foreign nations, with the power to impose their own laws on U.S. Citizens?
I don't think that is the intent of any Supreme Court decision or Congressional action in regards to tribal sovereignty. Tribes have a unique position as dependent sovereigns with land held in trust by the federal government. Although the current policy is to foster self-governance and self-determination, those two goals do not endorse civil rights violations.
Reinstatement_restitution ... it sounds like your talking in circles. While I understand your arguments now, not one of those was shown in Pasedena. What I don't understand is why would your family sue the Tribe when case by case have been thrown out with cases that look exactly like yours. I don't see the uniqueness.
The BIA cannot stand behind sovereignty, and Tribes that have had the BIA decide over any documentation have given up their sovereignty.
I also think ICRA has never gone through the extensive review of the court system and that is probably the most viable option however a very expensive process.
The difference in our case is that there was a final decision issued in 1989 by the AS-IA determining the blood degree of the ancestor from whom we claim lineal descent, and a second decision instructing the Pala Band of Mission Indians to enroll the qualifying descendents.
There is case law that states a final decision from the AS-IA has similar authority to the decision of a federal court judge. Therefore it could be interpreted as a violation of federal law to overturn the decision. Then there was the fact there was no evidence presented for the decrease in blood degree of a long dead individual. The Pala EC overturned a federal decision without any evidence.
To make matters worse the BIA has stated on at least four occasions that they uphold the 1989 Final Decision. To them upholding the decision means saying we should belong to our tribe, but they won't interfere because it is an internal tribal matter.
Anyway the court never heard the arguments or saw the evidence and dismissed the case so it is all moot now.
It may sound like circular reasoning, but it is unexplored territory. Who has appealed to the BIA on the grounds that the BIA is violating their civil rights if they make them ineligible for federal services and programs without due process? That is what happens with disenrollment, and it is patently unfair to let tribes decide whether or not an individual qualifies for federal services and programs. The tribes do not provide the programs and services, but the BIA has tied eligibility to membership in a federally recognized tribe.
Now what if that appeal also stated that the BIA is violating their right to equal protection under the law by discriminating against them as disenrolled Indians? Even worse, by applying tribal law to them when they have been stripped of tribal citizenship?
That is just a couple of the ways that disenrollees can appeal to the BIA to drive the federal government to develop a policy that deals with disenrollment without violating
inalienable civil rights.
It can go much further than that as we explore the options. All it takes is one decision by the BIA to state that civil rights abuse may be involved in some disenrollments, and then you have an agency of the federal government that can used as an authority to support a complaint of civil rights violation to the DOJ.
It could lead to the BIA providing hearings in some forum for disenrollees to present their allegations of civil rights abuse, because right now there is no recourse for disenrollees. That would be a remedy for the denial of due process.
What disenrollees get right now is zero consideration and complete disregard for the harm and injury that has been inflicted upon them. IN many of these cases it is the BIA that created the situation in the first place by forcing disparate tribal groups onto the same reservation as they did in Pala. There are Luisenos, Cupenos, Diguenos, and miscellaneous Mission Indians who were given allotments at Pala Reservation, and this has led to racial bias and hatred.
The BIA should not be able to wash their hands of the mess they created. The effort to amend the ICRA should be ongoing, but at the same time the civil rights violations continue unabated. This strategy might provide some relief for injured parties.
REINSTATEMENT...WHAT DOES A PROTEST DO? IF SOME DISENROLLEES ARE ALREADY IN THE COURT SYSTEM AND HAVE BEEN UNABLE TO PIERCE TRIBAL SOVEREIGNTY. PROTESTING WITHOUT ACTION SEEMS POINTLESS. IS SOMEONE FROM CONGRESS JUST GOING TO WAKE UP ONE DAY AND SAY LETS FIX THIS PROBLEM THAT AFFECTS LESS THAN .07% OF THE POPULATION? I AGREE THAT CIVIL RIGHTS VIOLATIONS WILL HAVE TO ULTIMATELY BE THE MEANS TO END THESE ATROCITIES.
A protest is an action, and could possibly bring some media attention to an issue that is destroying lives on a large scale. Action from Congress will take legislation approved by a majority in both houses. It seems like a daunting task, but I think some representatives are starting to notice the problems with gaming tribes.
We still have work to do developing our strategies and arguments. It is my belief that many disenrolled Indians seek assistance from state and federal agencies to help them recover from the disaster of losing income, health insurance, homes, land rights, and a place in the community. Maybe the taxpayers don't really want to foot the bill to support disenrollees while corrupt tribal leaders reap millions by eliminating political opposition, reducing numbers, and increasing their power through the threat of denying per-capita revenue sharing. I haven't seen any light directed at this aspect of the problem, and yet it might be the one that really grabs the attention of the voters.
Maybe it is time to compile some of the data to see if I am right. Are disenrollees filling up bankruptcy court, filing for food stamps, using public health care, requesting housing aid, or even counseling for depression? It will paint a sad picture and bring home the damage that is being done.
Meanwhile I am working hard on the potential of escalating the complaints of civil rights violations as regards disenrollment, but there are some grey areas that need to be clarified. Maybe we can ask NNABA to refer us to some member who is willing to do some pro-bono work. The argument that I am developing has nothing to do with tribal law though. It may be more of an ACLU type of project, but those guys seem to hate Indians just as much as the BIA.
I guess it won't hurt to ask, but everything in its proper time.
You always enlighten us however without legislation or a courts ruling, the disenfranchised will continue to be looked down upon until we have a streamlined issue of attack. I believe it lies with civil liberties. Amen brother. Thank you for your due diligence.
Protests have many benefits:
1. It brings issues into the view of politicians, media and customers.
2. They help bring families together, working on a common goal.
3. It shows tribes, in this case, those tribes that have harmed so many of us that e won't go away
Now, are we successful? Maybe. Would we have ANY shot at success if we didn't work for it? Nope.
Some WANT to do the right thing, but why should any politician look to spend their political capital, if we aren't wirking either?
@April 14, 2015 at 4:04 PM
We did not sue the tribe. It was a civil law suit against the committee members only, not the whole tribe. The tribe did not disenroll us, just the members of the Executive Committee, who are also the same members of the enrollment committee. They rule every faction of the tribe, even the Post Office. We are fighting a dictatorship, led by Robert Smith, who cares not about the history, the traditions, the Indian Way, or family. We were not voted out by the tribe and have never had a chance to talk to the general council, which is the whole tribe. People who try to help us that are still members, get their rights taken away and threatened with disenrollment for treason. We have family enrolled in other tribes whose blood degree has not been altered, it was just done over hate and fear of being exposed. It does not matter how many times we will be shut down, we are not going away, we will fight, because we know what is right, and that is just the way it is going to be. If it means writing letters, faxing, emailing, tweeting, face to face meetings, protesting, and/or suing, then that is what we are going to do. We know we are facing a downhill battle, but they have been won before. We have just as much right as any tribal member out there, it is our heritage, it is our tradition, it is our family, it is our tribe!!!
Yes, we sued the Pala EC not the tribe, but the court ruled that the Pala EC was acting in its official capacity and extended them sovereign immunity. I also want everyone to know how sneaky the court is.
We initially filed for declarative and injunctive relief because we alleged that the Pala EC overstepped its authority. What that means is that the disenrollment was not authorized by the tribe and so should be overturned. After the lower court decision was issued we decided to amend our claims in the appeal and to eliminate the request for declarative and injunctive relief.
There were two reasons for this. One is that the court ruled that the tribe would be the party that would have to provide this remedy, and the tribe had not been joined in the complaint, meaning the tribe was not named as a defendant. The second is that the status of many of the plaintiffs had changed in the interim between the decision and the appeal and they no longer wished to assert this claim.
Why do I say the court is sneaky? Because the court of appeals denied our request to amend our complaint to eliminate declarative and injunctive relief. It is a fine point, but it allowed the court to bring the tribe into the matter when we were not suing the tribe.
In this video the attorney for the Pala EC is asked if the General Council could be petitioned to overturn the disenrollments. The appeals court was trying to prove that there was a recourse available so they could sneak out of remanding the lower court decision and moving for a trial.
We did not want the tribe involved. We were suing the Pala EC for damages. They inflicted harm and injury on innocent persons for reasons of personal gain. Instead of giving us our day in court to prove our allegations, the sneaky court found a way to let the Pala EC off the hook and to keep their record of enabling corrupt tribal leaders harm tribal members intact.
You might think we were foolish for trying something new, but we thought we had a chance if only the court could overcome its desire to paint all membership disputes the same color. It doesn't work. The court will consistently rule that tribes can determine their own membership. The court will consistently rule that elected tribal officers represent that tribe and will extend them sovereign immunity.
The DOI, Congress, the DOJ, and the courts jump through hoops to avoid making policy on disenrollments. We have been pounding on their doors for years now and they completely disregard the issue. They whittle away at all arguments and focus on only the membership dispute and then use it as an excuse to dismiss, or to call it an internal tribal matter, or to nod their heads and pretend they are listening when instead all they can hear is the sound that contributions from gaming tribes to election committees and lobbying makes.
We need to be louder than that sound.
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