tribal membership

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

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.

Wenona Singel: “Indian Tribes and Human Rights Accountability”

March 28, 2013Matthew L.M. Fletcher5 Comments

Our own Wenona T. Singel has posted her paper, “Indian Tribes and Human Rights Accountability,” on SSRN. The San Diego Law Review recently published it.

Here is the abstract:

In Indian country, the expansion of self-governance, the growth of the gaming industry, and the increasing interdependence of Indian and non-Indian communities have intensified concern about the possible abuse of power by tribal governments. As tribes gain greater political and economic clout on the world stage, expectations have risen regarding the need for greater government accountability in Indian country. Despite these expectations, Indian tribes are largely immune from external accountability with respect to human rights. In fact, tribes have effectively slipped into a gap in the global system of human rights responsibility. The gap exists in the sense that tribal governments are not externally accountable in any broad sense for abuses of human rights that they commit. The failure of the legal system to provide for tribal accountability for human rights produces serious harms for Indian tribes and their polities. In this Article, I argue that the conventional understanding of tribal sovereignty must be reformed to reflect the transformative international law principle that all sovereigns are externally accountable for human rights violations. I then offer a proposal based on tribal accountability and respect for tribal sovereignty. I propose that tribes develop an intertribal human rights regime that includes the formation of an intertribal treaty recognizing tribal human rights obligations and establishing an intertribal institution with the capacity to enforce human rights violations. An intertribal human rights regime offers the best possible method for providing external accountability for tribal abuses of human rights. It allows tribes to address human rights violations without relying upon solutions supplied or imposed by the federal government. It also allows tribes to articulate and interpret universal human rights in light of their cultural, philosophical, spiritual, political, and social perspectives, and it allows them to develop effective and culturally appropriate institutional enforcement mechanisms.

You may recall that Michigan State Law Review hosted a symposium on Wenona’s paper. We will post those papers as soon as they’re published.

Is Nooksack Attempting to Disenroll Filipino Descendants?

March 22, 2013March 22, 2013Matthew L.M. Fletcher

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

March 20, 2013Matthew L.M. Fletcher2 Comments

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)

Federal Court Dismisses Pala Band Membership Claims On Sovereign Immunity Grounds

March 13, 2013Matthew L.M. Fletcher5 Comments

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.