Federal Court Remands Cal. Valley Miwok Membership Issues to BIA

Here are the materials in California Valley Miwok Tribe v. Jewell (D. D.C.):

56 Federal Motion for Summary J

83 Intervenor CVMT Response to US Motion

86 Plaintiff CVMT Reply

87 DCT Order Denying Motion for Reconsideration

88 DCT Order on Cross-Motions for Summary J

An excerpt:

For the reasons discussed below, this Court concludes that the Assistant Secretary erred when he assumed that the Tribe’s membership is limited to five individuals and further assumed that the Tribe is governed by a duly constituted tribal council, thereby ignoring multiple administrative and court decisions that express concern about the nature of the Tribe’s governance. Therefore, the Court will grant Plaintiffs’ motion for summary judgment in so far as it seeks remand of the August 2011 Decision and deny the Federal Defendants’ cross motion for summary judgment.

Prior posts are here, here, and here.

New Scholarship on Tribal Membership and UNDRIP

Shin Amai and Kate Buttery have posted “Indigenous Belonging: A Commentary on Membership and Identity in the United Nations Declaration on the Rights of Indigenous People,” forthcoming in Oxford Commentaries on International Law: A Commentary on the United Nations Declaration on the Rights of Indigenous Peoples, on SSRN.

Here is the abstract:

The recognition of indigenous peoples’ right to determine their own membership is crucial to the survival of indigenous groups and for their ability to meaningfully exercise their right to self-determination. This chapter will begin with a discussion of who indigenous peoples are, and will then proceed to review the specific provisions of the United Nations Declaration on the Rights of Indigenous Peoples (the Declaration) as they pertain to indigenous-determined group membership and duties: Articles 9 (right to belong); 33 (right to determine membership); 35 (right to determine responsibilities of members); and 36 (right to maintain relations across borders). Together, these provisions reinforce the right of indigenous peoples to define themselves, both in terms of membership and geographic scope. These rights are not absolute, however, and are constrained by Articles 44 (gender equality) and Article 46 (compliance with international human rights standards).

Star-Tribune Coverage of White Earth Constitutional Referendum

Here.

Ninth Circuit Briefs in Pala Disenrollment Appeal — Allen v. Smith

Here:

(August 9 2013) Appellants_ Opening Brief

Answering Brief 11-8-13

Lower court materials here.

David Wilkins in ICT on the Nooksack Disenrollments

Here.

An excerpt:

To her credit, it appears that the Chief Judge was attempting to console the disenrollees and explain a decision that gravely disappointed them. Unfortunately, she also utilized words that profoundly diminished indigenous sovereignty:
“While the Court recognizes the important entitlements at stake for the proposed disenrollees, this is a fundamentally different proceeding than a loss of United States’ citizenship…. In the case of tribal disenrollees, the disenrollee loses critical and important rights, but they are not equal to the loss of U.S. citizenship. A person who is disenrolled from her tribe loses access to the privileges of tribal membership, but she is not stateless. While she loses the right, for example, to apply for and obtain tribal housing through the Tribe, her ability to obtain housing in general is unaffected. Though she loses the right to vote in tribal elections, she does not lose the right to vote in federal, state, and local elections. While the impact on the disenrollee is serious and detrimental, it is not akin to becoming stateless.” (Emphasis mine.)

Whatever one’s views on the way each Native nation chooses to exercise their sovereignty with regard to defining membership, the judge’s view of Native nationhood is chilling. By ruling that the termination of a Native person’s citizenship is “not equal to the loss of U.S. citizenship” and the loss of tribal membership is “not akin to becoming stateless,” she places Native citizenship in a position squarely inferior to U.S. citizenship. The implications are profound. It is not realistic to expect to maintain true government to government relations with states and the federal government if we begin by diminishing our own status as citizens of sovereign nations.

 

Read more at http://indiancountrytodaymedianetwork.com/2013/11/07/disenrollment-disaster-my-citizenship-better-yours

News Update on Nooksack Disenrollments

Here.

Materials to be posted later.

20131019-102901.jpg

Updated Materials in Nooksack Disenrollment Appeal — Roberts v. Kelly

Here:

Roberts v Kelly – First Amended Complaint w Appendices

Roberts v Kelly Order Accepting First Amended Complaint

Roberts v. Kelly Declaration of Gabriel S. Galanda in Support of Motion for Contempt

Roberts v. Kelly Motion for Contempt Against Kelly Defendants

Roberts v. Kelly Motion for Reconsideration of Sua Sponte September 6, 2013 Order

Roberts v. Kelly Order Denying Motion for Contempt

Bellingham Herald: http://www.bellinghamherald.com/2013/09/19/3212992/both-nooksack-tribal-factions.html

Read more here: http://www.bellinghamherald.com/2013/09/19/3212992/both-nooksack-tribal-factions.html#storylink=cpy

Al Jazeera America!: http://america.aljazeera.com/watch/shows/live-news/2013/9/tribal-families-battleefforttorejectthem.html

Update in California Valley Miwok Tribe v. Salazar — Updated 9/27/13

The court has issued an opinion in California Valley Miwok Tribe v. Salazar (D. D.C.):

DCT Order

From the order:

This matter is before the Court on Intervenor-Defendant’s motion to dismiss for lack of subject-matter jurisdiction, Fed. R. Civ. P. 12(b)(1), and for failure to state a claim, Fed. R. Civ. P. 12(b)(6). See Motion to Dismiss Plaintiffs’ First Amended Complaint for Declaratory and Injunctive Relief (“Mot.”), Dkt. No. 58, at 2 (Mar. 26, 2012). Intervenor-Defendant also argues that it is a required party but that its joinder is precluded by sovereign immunity, id. at 21; for clarity the Court will construe this argument as a motion to join a required party under Federal Rule of Civil Procedure 19(a)(2). Because the Court agrees that Intervenor-Defendant is a required party but not that its joinder is precluded by sovereign immunity, the motion to join a required party is GRANTED. Because the Court finds Intervenor-Defendant’s remaining arguments to be largely — but not entirely — without merit, the motion to dismiss is GRANTED in part and DENIED in part.

Materials are here.

Update — additional materials:

2013 09 20 Motion for Reconsideration

2013 09 20 Motion for Stay Pending Reconsideration

DCT Order Denying Stay

Seattle Times Coverage of Nooksack Disenrollments

Here.

Excerpt:

The federal government has been hesitant to get involved in tribal internal affairs, according to Robert Anderson, director of the Native American Law Center at the University of Washington and an enrolled member of the Minnesota Chippewa Tribe. A group of Snoqualmie members experienced a rare legal victory in 2009 when a federal court judge overturned their banishment and disenrollment.

Disenrollment decisions are not only about membership, but also about belonging, Raquel Montoya-Lewis, chief judge of the Nooksack Tribal Court, wrote in a court decision.

“Cultural and tribal identity lay at the heart of how we know ourselves. … Belonging to a tribe gives tribal members a sense of home, of connection to a community, whether one lives there or not,” Montoya-Lewis wrote.

Update on Nooksack Disenrollments — Restart on Disenrollment Process

News coverage on the impact of the disenrollments on school-age children here.

Materials in Roberts v. Kelly (Nooksack Tribal Court):

Roberts v. Kelly Motion for Temporary Restraining Order

Roberts v. Kelly Declaration of Gabriel S. Galanda In Support of TRO Motion wExhibits

Roberts v. Kelly Motion to Disqualify Chief Judge Raquel Montoya Lewis

Roberts v. Kelly Order Denying Emergency Temporary Order Hearing

Roberts v. Kelly Order Denying Motion To Disqualify Hon. Raquel Montoya-Lewis

Materials in Lomeli v. Kelly (Nooksack Ct. App.):

Lomeli Notice of Appeal

Motion for Clarification or Relief from Stay of Proceedings

Order on Motion for Clarification from Stay of Proceedings