Thursday, January 15, 2009

Crack in the Sovereignty Dam? San Manuel Band Named in MURDER FOR HIRE Lawsuit.

The Press Enterprise in another example of writing about problems at tribes other than Pechanga has the full story.

The San Manuel Band of Mission Indians has been named in a lawsuit linking the tribe to a 2006 murder-for-hire plot hatched inside a private casino VIP lounge.
Previously, tribal members Stacy Cheyenne Barajas-Nunez, 26, and her brother, Erik Barajas, 36, were named in the suit filed last year linking the siblings to the Mexican Mafia gang.

Attorney Frank Peterson, representing plot target Leonard Epps, claims in a Jan. 6 filing that the tribe is liable because it gave gang members special access to a private casino lounge.
"I'm saying, 'Hey, you were negligent,' " Peterson said Wednesday. "You let them in."

Tribe spokesman Jacob Coin did not return calls seeking comment.
The proposed amendment to the $50 million lawsuit filed last year contains tentative language that could link the tribe to the murder plot.

"That will be a jury question," Peterson said.

It looks like we will see if judges will kick the case on sovereignty issues, meaning that tribes will bear no responsibility for criminal activity on their reservation, towards those who are not from the tribe. Is this what was meant by self reliance?

19 comments:

Erick said...

I think the short answer to your query is: yes, the court will dismiss the case on lack of jurisdiction by way of tribal sovereign immunity. I don't have any of my notes in front of me, but from what I recall, if the crime occurred off reservation and none of the real parties in interest (victim & offender) were Indians then there's no need to bring the tribe into the lawsuit.

But again, this is just off the top of my head, I might be wrong.

Anonymous said...

Wouldn't the conspiracy portion of the crime, that occurred AT THE CASINO, where Stacy got a private room, apply?

Erick said...

State courts will have jurisdiction to hear the conspiracy charge that happened at the casino via Public Law 280, however charging the tribe itself by providing "haven" for gang members seems like a stretch.

Reading the article, the mafia members were let into the lounge by employees so they didn't have to wait in line - which implies that the staff members, and somehow, the tribal government, acted as a conspiracy.

Generally, a conspiracy requires two or more people with the specific intent to commit the underlying offense agree to commit that offense and to take a substantial step towards committing the crime.

I guess there's an argument to be made for the plaintiff's lawyer but I just don't see this one winning. I think perhaps the attorneys thought the casino was the deep pocket from which they could file suit and provoke a settlement.

Allen L. Lee said...

One of the original intents of sovereign immunity as I recall was to protect the treasuries of nations from being depleted by lawsuit and therefore destroying the nation by bankrupting it.
This was believed to be the non-warfare way of destroying an enemy country.
Any money attributed to the tribal treasury is immune from lawsuit under the concept of sovereign immunity. The wrong-doers deed is attributed to the wrong-doer, not the treasury of the Nation.
If we take into account the fact that San Manuel punished the wrong-doers by banishing them from the reservation, than any tribal liability would be next to nothing.
Leading to the point that punishing a citizen by banishing or dis-enrolling them for acts of treason or high crimes, like conpiracy to commit murder, that's a perfectly acceptable cause for a Nation/Tribe to remove someones right to belong. Punishing them because an ancestor doesn't pass a genetic or residential test is not acceptable, and dis-enrollment, as testimony from those dis-enrolled have demonstrated, is punishment

'aamokat said...

Mr. Lee, but what about people being disenrolled who do meet the genetic test and the residency test?

As the case involving the Foremans from the Redding Rancheria near Redding, Ca shows, they submitted undisputed DNA evidence to their tribe but they were still disenrolled.

Or another case, that involving the Enterprise Rancheria, in which about 70 tribal members, including the vice chairman of the tribe, were disenrolled when they signed a petition to recall most of the tribal council for alleged misappropriation of funds.

So yes disenrollment is punishment and most of the time no crimes have been committed by the disenrollees.

Those members at San Manuel who acted in concert with Mafia members by all rights should be banished and/or disenrolled but should the thousands of people in tribes up and down the state of California and elsewhere in the United States face the same, as you say, punishment?

In my family's case, we can document that our ancestor lived not only on the original Pechanga reservation but also she was with the people prior to the people being kicked off of their aboriginal lands and we have an allotment on the reservation as well but we were still kicked out of our tribe.

In the case of the other large family line who was disenrolled from Pechanga the tribe claimed that their direct ancestor wasn't on the reservation during the historical period despite their blood ties to the tribe.

But the direct descendants of her half sister are still tribal members despite the fact that the half sister is not listed in the first Pechanga census records of the late 1890's but is listed as living on the Soboba reservation (another local tribe) during part of that time.

So why are the descendants of one sibling in while the descendants of the other sibling are out?

Can we say politics and bias?

Add on the fact that a descendant of the one sibling still in the tribe she voted to disenroll her own blood.

White Buffalo said...

Don't you love family? I remember when Cousin Francis M, my mom's first cousin, came to my grandfather's house in the early eighties and asked him to walk her through the graveyard. My grandfathers were the historian of the family because he knew and lived with his grandmother Manuela Miranda. As most, know the story we were disenrolled shortly after his death. The old bald which was threatened by our numbers and the fact that we would have not allowed the corruption continue.

Anonymous said...

is being banned from the reservation the same as being kicked out of the tribe?...and does that mean that the two gangsters will not get per capita anymore or does anybody know?...because who really cares if you are banned from the reservation if you still get that nice fat check each month?

Allen L. Lee said...

This one is for the last "anonymous" I think it may have some bearing on the San Pascual use of Sheriffs. Banishment is not considered as severe as dis-enrollment. It typically can be lifted at anytime.
to the article:
"...An interesting case of tribal banishment occurred in 1998, in Penn v. United States. Margaret Penn, a non-Indian tribal prosecutor and part-time grantwriter on the Standing Rock Reservation of the Sioux Tribe in South Dakota, brought charges against a tribal court chief judge for unethical conduct. She was terminated from her employment, and she then sued for wrongful termination. During the pendency of that suit, she was served an ex parte order from the tribal judge, banishing her from the reservation on false charges. She was given 45 minutes to gather her personal belongings and was escorted off the reservation within two hours.
Despite $17 million in 1998 federal funding for the tribal court, reservation, and tribal council, Penn was constrained in her ability to effectively sue the Standing Rock tribe by limited federal jurisdiction in the face of Sovereign Immunity. Relying on a Habeas Corpus remedy afforded by the Indian Civil Rights Act, she filed suit in U.S. district court, expressly requesting that the federal court find that it had jurisdiction to hear "any Cause of Action arising out of … the banishment order."
The tribe responded by vacating the banishment order. In January 1999, the federal district court dismissed Penn's case as moot because the banishment order had been canceled. In March 2002, the court ruled on Penn's suit against the Bureau of Indian Affairs (BIA) and the County Sheriff who has effected service of the facially invalid banishment order. Penn v. United States, Case No. A1–00–93. The court ruled in Penn's favor, defeating the defendants' claims of sovereign or qualified Immunity. The two key issues involved were the "routine denial of fundamental constitutional rights by tribal governments and courts" and "holding the BIA and County Sheriff responsible for enforcing an [ex-parte] order that violated constitutional protections and issued by a [tribal] court with no jurisdiction over Maggie Penn." An appeal to the Eighth Circuit Court of Appeals was expected."
http://legal-dictionary.thefreedictionary.com/Banishment

Allen L. Lee said...

To 'aamokat
I want to begin with a discussion about Kennewick Man. In 1996 a skeleton was found along the Banks of the Columbia River. The remains were nearly 9000 years old. Five northwest tribes argued for repatriation of the remains but scientist argued that the emains resembles those of Caucasians and may not have been associated with native American heritage, thereby giving the right to research the bones to non-Native descendants.
The argument:

"K E N N E W I C K M A N
By James C. Chatters
...The man lacks definitive characteristics of the classic mongoloid stock to which modern Native Americans belong. The skull is dolichocranic (cranial index 73.8) rather than brachycranic, the face narrow and prognathous rather than broad and flat. Cheek bones recede slightly and lack an inferior zygomatic projection; the lower rim of the orbit is even with the upper. Other features are a long, broad nose that projects markedly from the face and high, round orbits. The mandible is v-shaped,with a pronounced, deep chin. Many of these characteristics are definitive of modern-day caucasoid peoples, while others, such as the orbits are typical of neither race. Dental characteristics fit Turner's (1983) Sundadont pattern, indicating possible relationship to south Asian peoples."
http://www.mnh.si.edu/arctic/html/kennewick_man.html
The argument to whether he was Caucasion or Asian in appearance is an American concept of racial heritage which I disagreed with in this case. Even if the person was bone White the he would have been considered an indigenous ancestor because he was on this continent before Colombus. Native peoples don't usually place their ancestors in the same racial terms.
When DNA tests and genealogy test are required for a Native tribal person to retain and preserve their tribal status, I sense western racism at work. Any other sovereign nation that required such measures for its' citizens to retain their rights would be globally condemned.
Imagine Barack Obama putting his hand on Lincoln's Bible when he is sworn in and declaring that America made a mistake in giving citizenship to ex-slaves. Imagine a scan of all the slave records in the U.S. and if your ancestor's name showed up on one, your citizenship was removed. Or better, only the ones who could prove they had some white blood in their heritage, like Sally Hemmings children by Thomas Jefferson, or Barack Obama himself and his descendants. That's the way I see the current Native Nations dis-enrollments. The researcher who worked on your family's genealogy should have at least addressed the ethics of the how the information would be used by the tribe, which was to determine whether a citizen of a nation would retain their citizenship.
An ancestor should not be required to defend themselves from the grave, and a living descendant should not be required to rely on such a defense once they are fully recognized and enfranchised in their nation.

'aamokat said...

But the researcher who the tribe, not us, hired said that according to surviving historical documents that my family are indeed Pechanga.

The key words here are surviving documents as the few docments on our family history we couldn't find, according to the enrollment committee, weighed heavily against us.

Ironic that in his report the tribe's own hired expert said that a lot of Pechanga families couldn't find those source documents from the 1800's because some records have been lost for over 150 years.

So even the people who voted us out of the tribe very likely couldn't find them either.

Another violation of Article V of the Band's constitution against malice or prejudice against individual tribal members.

But there were enough other documents available from the historical period that filled in all of the gaps of the missing documents.

So what was the main rationale for kicking us out of the tribe?

The CPP faction of the tribe claimed that documentation could not prove membership that only oral traditional recognition was the way to determine who belongs in the tribe.

So the enrollment committee, stacked with people from the CPP faction, required us to submit certified and notarized documents to them which they then ignored in kicking us out of the tribe.

Another irony of it all was that we had seven current tribal elders who gave notarized testimony in our behalf that they have always recognized us as being Pechanga compared to three tribal elders from the CPP faction who said they have never recognized us as Pechanga.

That is in addition to elders who lived in the historical period who testified in 1915 during the probate hearings for our allotment.

One of them, Dolores Tortuga, said when asked, are you aquainted with the deceased Pechanga Indian allottee Paulina Hunter? Her reply was, "yes I knew her as a neighbor when WE PECHANGA INDIANS lived on the Pauba Ranch near Temecula, California."

Plus this is backed up by the census records from the late 1800's as well.

Our critics from the current CPP faction, who abviously were not alive during the historical period in question, say that Tortuga was only saying our ancestor was a neighbor not that our ancestor was Pechanga.

But it is clear that Tortuga was including my ancestor in the "We Pechanga Indians."

Not only that, her testimony was colloborated by other elders who added our ancestor lived on the Pechanga reservation when it was created.

One elder, Antonio Ashman who is called a vaunted (much praised) elder on the Pechanga tribe's own Web site, said he knew my ancestor as a member of the Band.

So when people from the CPP faction say that only tradtional oral recognition can prove membership they leave out the fact that it is only who they say belongs no matter what other testimony, both oral and written, we have.

'aamokat said...

Back to the topic of this thread, I don't think the lawsuit verses the San Manuel tribe has merit because unless the tribal members were acting in an offical capacity for the tribe, which is unlikely because the tribal council only has that authority, then I don't think the tribe cound be liable.

As far as the tribal members being let into a private lounge. The employees may have let them and their guests in as a courtesy to the tribal members, who they recognized as such, and the employees had no idea what was being discussed.

I think the court will throw this lawsuit out.

'aamokat said...

Add on to my last post, but it is interesting to see if a court will hear the case in the first place even if it is thrown out on its merits.

Anonymous said...

So the banishment from the reservation is just a bunch of nothing to these gangsters from san manuel..they will still get the reported $100,000 A MONTH or more per capita check....the chief has really done nothing but put a spin in the papers to make himself look good....is that what you are saying?...if he really meant to do something it would have been dis-enrollment of the two....

Anonymous said...

Since the tribe has determined not to release the particulars of the banishment, we have no idea what the severity of the banishment is other than a reported fine that comes with it. The point is that banishments, shunnings, dis-enrollments, and revocations of citizenship are seen as punishments.
Using these punishments for high crimes and/or treason is still considered acceptable. Using these punishments for people that have a questionable ancestor is not.

'aamokat said...

But what I have been saying is that the Pechanga tribe used disenrollment to sweep corruption under the rug.

Any doubts any reasonable people may have had about our crdentials as tribal members should have been laid to rest by the documents we turned in.

Below are allegations made against members of the Enrollment Committee that were made by family members of the Hunter and Manuela Miranda families:

On Feburary 21, 2003 new members on the Enrollment Committee who had been elected in 2002, including Hunter and M. Miranda family members, sent a letter to the Tribal Council informing them of corruption on the Enrollment Committee.

The letter detailed how members of the Enrollment Committee had acted to deny enrollment to lineal descendants of enrolled members.

These (committee) members would require DNA tests, delay meetings, and misinform parties before the Enrollment Committee.

A letter from February 25, 2003 provided the Tribal Council with more information about the corruption irregularities, which included:

1. A copy of the 1940 Census roll with 13 additional members handwritten onto the list. Of the 13 listed, 12 were born after 1940. All of the names belong to an Enrollment Committee member's family (from the CPP).

note: This person was a former employee at the BIA

2. Adults enrolled 8 months prior to the 2000 election despite the moratorium.

3. Enrollment files for enrolled members that were missing. Some member's files were completely gone. Enrollment files and documents that were determined missing, through exhaustive search, reappeared a few days later.

4. Enrollment files for enrolled members that were unsealed. This violates the practice that files should be sealed once a member is enrolled and only opened if there is a reason to investigate.

5. Minutes from past Enrollment Committee meetings were stored in the back of an Enrollment Committee member's vehicle.

I was not a member of the committee and I did not make the above allegations and while I can't document that the offenses allegedly committed by the committee are true, It is documented that the tribal council was alerted to the allegations.

So regardless if the allegations are true, which I believe they are, but even if the are not true, those Enrollment Committee members who had been accused should not have been allowed to rule on my family's (Hunters) and the M. Miranda's disenrollment cases.

So, as I have said about a "thousand times" and I guess I will keep saying it until something is done about it, the tribal council and the Enrollment Committee violated Article V of the Band's constitution against malice or prejudice agaisnt individual tribal members when they disenrolled us.

BUT AS I HAVE PREVIOUSLY SAID AND I WILL CONTINUE TO KEEP SAYING, IF A TRIBE VIOLATES ITS OWN RULES, WHO CAN MAKE THEM FOLLOW THOSE RULES BECAUSE OF SOVEREIGNTY?

cideways said...

I think the case will definitely get thrown out. What good is all that money if you can't buy your way out of trouble.

Allen L. Lee said...

To 'aamokat "


Your statement:
"...IF A TRIBE VIOLATES ITS OWN RULES, WHO CAN MAKE THEM FOLLOW THOSE RULES BECAUSE OF SOVEREIGNTY?"
If we look away from the concept of "us or them" as the dis-enrollment have fractionalized one sovereign people, and look at it as we are also them, then the answer is you as a Pechanga and all other Pechanga's will be the ones to make corrupt persons follow the rules.
If you were to present yourself as a Pechanga citizen and I were to recognize you as such, this would be the beginning. Finding persons from both factions who are willing to stand on the common principles of the rules and external persons who are willing to refuse to validate the violation committed against you and other dis-enrollees
by giving them exclusive recognition, that would be a start.
My job would be to recognize you as a Pechanga citizen, your job would be to assert your Pechanga citizenship both to the alienating faction, the faction that embodies you, and external governments and citizens like myself. If you have the right to the rule of law then you must assert that right, others can support you but they can not externally do for you what you must do for yourself as a Pechanga sovereign.
With that statement I say, sovereignty is not your enemy, the term has been hijacked by corruption and must be seen in it's correct and just application.
if the dis-enrollers refuse an offer to establish a coalition government of one Pechanga people that includes you, then you have the right to present your alienated government to other governments and request an independent sovereign recognition based on the laws that were violated and your previous Pechanga recognition.
We already know who will not recognize you, the question is who will? Let me start by recognizing you as a rightful Pechanga person.
I would like you to take a look at the link that follows and think about perhaps doing something similar.
Allen L. Lee

http://citizensbriefingbook.change.gov/ideas/viewIdea.apexp?id=0878000000051GI&srPos=0&srKp=087


p.s. I was the anonymous that posted the segment about the San Manuel banishments as a form of punishment, etc. writing fast and not paying attention to the details. I like to take responsibility for what I say.

Allen L. Lee said...

In addition,
Suppose those who were victimized by the mis-application of Pechanga laws were to re-constitute the Pechanga Nation using the very same laws in their correct context? Would those people at least deserve the right as self-determined people to solicit government-to government relations with other tribes, states and the federal government?

Anonymous said...

Grand idea Mr. Lee; I am not a Pechanga descendent, but the wife of one who has been cut out of any tribal benefits. Your proposal is exactly what I would say do, organize and “re-constitute within the non-corrupted Pechanga Nation”. Then, as you suggest, begin the process of building a new governmental relationships with tribes, states, and the federal government. Thank you!