Perhaps as Many as Three Ninth Circuit Indian Criminal Cases Uncertain as Feds Ponder En Banc Petition in U.S. v. Zepeda

Today, the Ninth Circuit withdrew an opinion affirming a conviction in United States v. Alvirez. The Alvirez materials are here. The Zepeda materials are here. The federal government has until April 18 to file an en banc petition. A third decision that may be implicated as well is United States v. PMB (materials here).

The issue in Zepeda is here:

The panel held that a Certificate of Enrollment in an Indian tribe, entered into evidence through the parties’ stipulation, is insufficient evidence for a rational juror to find beyond a reasonable doubt that a defendant is an Indian for purposes of § 1153, where the government offers no evidence that the defendant’s bloodline is derived from a federally recognized tribe.

This American Life Segment on Tribal Disenrollments

Here.

Robinson Rancheria Disenrollees Bring Housing Contract Breach Suit

Here is the complaint in Harrison v. Robinson Rancheria Band of Pomo Indians (N.D. Cal.):

Harrison Complaint

An excerpt:

1. This action is brought by Alan and Christina Harrison, Robert Quitiquit, Karen Ramos, Inez Sands, and Reuben Want (“Plaintiffs”). Plaintiffs are disenrolled members of the Robinson Rancheria (“Defendant” or “Tribe”).
2. Plaintiffs seek relief for Defendant’s: 1) violation of their rights to due process, and 2) breach of contract.
3. Plaintiffs are parties to a housing program designed, funded and supervised by the U.S. Department of Housing and Urban Development (“HUD”).
4. Plaintiffs entered in Mutual Housing Occupancy Agreements (“MHOA”) whereby an Indian Housing Authority would administer a home lease with an option to buy. Initially, HUD contracted with the Northern Circle Indian Housing Authority (NCIHA”), a non-Robinson Rancheria entity.
5. Defendant, a federally recognized Indian Tribe, assumed the rights and responsibilities of the Indian Housing Authority and the MHOAs with Plaintiffs.
6. Defendant breached the MHOAs repeatedly since assuming the contractual responsibility to administer the agreements in compliance with its terms, which include applicable HUD regulations.
7. Defendants then initiated a multi-year plan to unlawfully evict Plaintiffs in contravention of the MHOA terms, which employ landlord tenant law under federal, state or local law.
8. Defendants denied Plaintiffs’ due process as required by the Robinson Rancheria Tribal Court and initiated a federal case asking the court to rally federal marshals to enforce the unlawful eviction issued by the corrupt tribal court. When the federal court insisted upon reviewing the MHOAs and sending the parties to mediation, the Defendant immediately withdrew their complaint.
9. Plaintiffs have lost their homes, seen their possessions thrown into large garbage bins and had their pets killed and discarded.
10. Now virtually homeless and having received no assistance from HUD or the Bureau of Indian Affairs or Congress, the Plaintiffs herein file this action.

Is Nooksack Attempting to Disenroll Filipino Descendants?

Here.

ETA: As pointed out on our Facebook page, here’s the LA Times article linked to in that article with additional background. Thanks to T.S.

Tribal Court Suit to Prevent 306 Nooksack Tribal Membership Disenrollments

Here:

Complaint (with a list of the 306 proposed disenrollees)

Motion for Temporary Restraining Order

Declaration of Nooksack Elder Sonia Lomeli (with Exhibits)

Declaration of Noosack Elder Norma Aldredge (with Exhibits)

Declaration of Tribal Council Secretary Rudy St. Germain (with Exhibits)

Declaration of Tribal Member RaeAnne Rabang

Declaration of Tribal Fisherman Terry St. Germain (with Exhibits)

Declaration of Gabriel S. Galanda (with Exhibits)

Ninth Circuit Holds Unauthenticated Tribal Membership Card Insufficient for Proving Indian Status under Major Crimes Act

Here are the materials in United States v. Alvirez (opinion here):

Alvirez Brief

Federal Appellee Brief

Alvirez Reply

From the court’s syllabus:

Reversing a conviction for assault resulting in serious bodily injury on an Indian reservation in violation of 18 U.S.C. §§ 1153 and 113(a)(6), the panel held that the district court abused its discretion when it admitted an unauthenticated Certificate of Indian Blood issued by the Colorado River Indian Tribes as evidence that the defendant has tribal or federal government recognition as an Indian. The panel wrote that because Indian tribes are not listed among the entities that may produce self-authenticatingdocuments, the district court abused its discretion in admitting the Certificate pursuant to Fed. R. Evid. 902(1) as a self-authenticating document.

 

Federal Court Dismisses Pala Band Membership Claims On Sovereign Immunity Grounds

Here are the materials in Allen v. Smith (S.D. Cal.):

17.1 – Defendants’ Memorandum Supporting Motion to Dismiss

18 – Plaintiffs’ Opposition to Motion to Dismiss

23 – Defendants’ Reply Supporting Motion to Dismiss

26 – Plaintiffs’ Notice of Recent Authorities

28 – Defendants’ Response to Notice of Recent Authorities

31 – Plaintiffs’ Notice of Additional Recent Authorities

33 – Defendants’ Response toNotice of Additional Recent Authorities

36 – District Court Order Dismissing Action

Judge William Q. Hayes of the Southern District of California ruled that sovereign immunity barred claims against the Pala Band of Mission Indians seeking enrollment in the Tribe and money damages. Importantly, the court distinguished the Ninth Circuit’s recent decision in Maxwell v. San Diego County.

Here are some key excerpts:

The Maxwell court distinguished the facts of its case from Hardin v. White Mountain Apache Tribe, 779 F.2d 476 (9th Cir. 1985), a case where the plaintiff sued tribal council members for allegedly ordering tribal police to eject plaintiff from tribal land. Id. at 478. The Court of Appeals for the Ninth Circuit in Hardin concluded that the council members “had act[ed] in their representative capacity and within the scope of their authority.” Id. at 479. “Holding the defendants [in Hardin] liable for their legislative functions would … have attacked the very core of tribal sovereignty.” Maxwell, 2013 WL 542756 at *12.

. . .

Based upon the “essential nature and effect” of the injunctive and declaratory relief sought in the Complaint, the Court finds that the Pala Tribe is the “real, substantial party in interest” in this case. Maxwell, 2013 WL 542756 at *11. Only the Pala Tribe, whose sovereign immunity is unquestioned, could satisfy the relief sought in the Complaint, i.e. the reinstatement of Plaintiffs as members of the Tribe. Defendants, as members of the Executive and Enrollment Committees, “possess the power” to grant Plaintiffs that relief “on behalf of the tribe.” Id. Accordingly, the Court finds that this action, as alleged, is fundamentally one against the Pala Tribe and that Plaintiffs have sued the individual Defendants in their official capacities.

. . .

The Court finds that the relief sought in this Complaint would “require affirmative action by the sovereign,” i.e. the Pala Tribe’s re-enrollment of Plaintiffs. Larson, 337 U.S. at 691 n.11. Such a remedy would operate against the Pala Tribe, impermissibly infringing upon its sovereign immunity. See generally Lewis v. Norton, 424 F.3d 959 (9th Cir. 2005) (“Courts have held that tribal immunity bars suits to force tribes to comply with their membership provisions, as well as suits to force tribes to change their membership provisions.”(citations omitted)); Santa Clara Pueblo, 436 U.S. at 72 n.32 (“A tribe’s right to define its own membership for tribal purposes has long been recognized as central to its existence as an independent political community…. Given the often vast gulf between tribal traditions and those with which federal courts are more intimately familiar, the judiciary should not rush to create causes of action that would intrude on these delicate matters.”); Imperial Granite Co., 940 F.2d at 1272 (“[A] tribe’s immunity is not defeated by an allegation that it acted beyond its powers.”). Based upon the factual allegations of the Complaint and the nature and effect of the relief sought, the Court concludes that Defendants acted in their official capacities and within the scope of their authority when they made the membership determinations at issue in this case.

Table Mountain Rancheria Prevails In Membership Dispute Before The Ninth Circuit

Materials in Lewis v. Salazar here:

12 – Appellants’ Opening Brief

24 – Secretary Salazar’s Answering Brief

26 – Tribal Defendants Answering Brief

34.2 – Appellants Corrected Reply Brief

52.1 – Memorandum Opinion

NYTs “Disunion” Series Profiles Cherokee Nation after the Civil War

Here.

Fascinating. My favorite part:

By 1862, Ross had become disillusioned with the Confederate government. The first major military engagements in Indian Territory proved disastrous for both the Confederacy and the Cherokees. Retreating from Indian Territory, the Confederacy left the Cherokees open to Union advances and without supplies for Cherokee troops and destitute civilians. Although Ross believed the Confederacy was shirking its treaty promises, the Confederate colonel Douglas H. Cooper called upon Ross to fulfill his obligations by ordering all Cherokee men of fighting age to “take up arms to repel invasion.”

Union Capt. Harris S. Greeno was aware of Ross’s dissatisfaction with the Confederacy, and he ordered the arrest of Ross and his family at their plantation home, Rose Cottage, in present-day eastern Oklahoma. They were quickly paroled and escorted to Union territory, and they retreated to his wife’s family home in Philadelphia. Ross would spend the remainder of the war attempting to convince the Lincoln administration of the Cherokee’s loyalty and commitment to the Union cause.

Cherokee Nation En Banc Petition in Vann v. Salazar

Here:

2013-01-28 Appellee Cherokee Nation Petition for Rehearing (without attachments)

Panel materials here.

The D.C. Circuit has had few, if any, en banc hearings in the last few years because the court is severely understaffed. There have been, however, a rash of dissents from denial of en banc petitions which serve as a sort of marker for later review. Worth it to see if anything happens here.