Saturday, March 3, 2012

OPINION II: Are Disenrollments a Violations of the Indian Civil Rights Act?

Civil Rights Attorney Donald Daines gives us a supplement and clarification to his prior post “Are Disenrollments a Violation of the Indian Civil Rights Act? But in the end, the solution does not lay in what the BIA or the US Courts decide, but within ourselves.”    To save space, the post will has a break in it, PLEASE read the entire supplement and add your questions and comments. OP

Thank you for the opportunity to supplement my previous post to clarify some confusion of the readers and address a couple of questions and misunderstandings about the Indian Civil Rights Act. As previously stated, the only relief under ICRA is “habeas corpus” (free the prisoner from ‘custody’). If the prisoner is in a Nation’s jail, the habeas corpus petition is made under to the US Courts 25 U.S.C. §§ 1301-1303 ICRA. If the prisoner is in a US Federal prison pursuant to an order of a Nation Tribal Court, the petition is made under to the US Courts still under 25 U.S.C. §§ 1301-1303 ICRA because the incarceration is according to the Tribal Court decision, not the US Court.

Indian Nations have ‘government to government’ direct with the US Federal government. An Indian Nation can take an Indian prisoner to be incarcerated for the Indian Nation. The incarceration is according to the Indian Nation’s judgment and order, not that of the US Courts or US laws. The US is merely the custodian of the prisoner pursuant to the Indian Nation’s Tribal Court orders and the US has no authority to release an Indian prisoner but must abide by the Tribal Court’s decisions.

One of the many “Anonymous” comments, I believe 11:42AM, was correct about how Santa Clara could be argued to apply only to additions to the Roll of new people, but not control the removal of members by disenrollment. Poodry over ruled Santa Clara with regard to ‘banishment’. The comment was “Santa Clara does not fit in with termination of life long Indians from a band, restriction to or threats of restriction of Indians to there homes, or more important the termination of Indians rights under distress of a dictatorship.” Again, I have not yet found any decision addressing ‘disenrollments’, which are worse than banishment.

Even if an act is a clear violation of ICRA, you still must prove “restraint” that qualifies as “custody” before the US Court has any power to undue or release the person from “custody”. What restraint is sufficient to “custody will be a matter of debate for a very, very long time because there is no “bright line”. Poodry held that “banishment” was sufficient restraints upon liberty to constitute “custody”, therefore, the US Court not had power to step in, but under ICRA, it had an obligation to order the Indian Nation to release the banished people from the custody of banishment.

What I have not yet seen is a court decision that involves the question of whether “disenrollment” (mush worse than banishment) is sufficient “restraint” upon liberties to constitute “custody” for purposes of requiring the US Court to release the disenrolled from the custody of disenrollment.

If disenrollment can be found to be sufficient restraint to be custody, then the disenrolled have a powerful weapon to force the Nation to reinstate them. Everyone here knows that those who did the disenrollment will break their brains trying to figure out other ways to punish the reinstated members, so the dispute will never end until people realize how disenrollments are exactly what the US policies want, and they don’t even have to pay for the bullets. The new motto will become “the only good Indian is a disenrolled Indian.” What are you all thinking about? geesh

Well another potentially powerful weapon to use against those who use their intelligence to disenroll members rather than sharing the buffalo kill with the whole village is to argue that disenrollments are in fact “bills of attainder” and expressly prohibited by ICRA, therefore the US Courts must reinstate the members. You don’t have to argue that disenrollments are sufficient restraints upon liberties to rise to the level of being “custody” because ICRA specifically says “No Indian Tribe in exercising powers of self-government shall—(9) pass any bill of attainder or ex post facto law.” § 1302. ICRA acknowledges that bills of attainder are by definition “custody” and therefore, the US Court has the power under ICRA to grant habeas corpus relief and reverse the disenrollment.

So, the question becomes which the US Courts have not yet answered that I have found is do these disenrollments constitute a prohibited ‘bill of attainder’? Again, ICRA was only adopted in 1968, a little over 40 years ago – one life time. So of the more than 200 years of Indian Wars, Indians have only had ICRA for the last 40, and its meaning is being interpreted everyday, and will continue to be argued about.



So, what I tried to bring to the struggle were hopefully some new and potentially powerful arguments that the US Courts have not yet addressed that I know of. I hope others will find them to have potential and will pursue them in the US Courts, and I hope the arguments succeed. Maybe then, people will pause, take a breath and look at everyone not as enemies to be driven form the camp, but as family that deserves and needs a place at the fire. Sure, it might require some of the Indian 1% to take a little less, but the Wasicu (fat stealers) hopefully will do that.

So, the two arguments are (1) prove that Disenrollments place a person under sufficient restraints to constitute “custody”, therefore the US Courts have the power and obligation to release the disenrolled from custody and reinstate him; and (2) prove that Disenrollments are in fact “bills of attainder” specifically prohibited by ICRA, so once again, the US Courts have the power and obligation to release the disenrolled from custody and reinstate him.

I see the two arguments as completely independent, but could be made in the case to test them both. I hope the US Courts see disenrollments as bills of attainder as I do, but that will be up to the Courts and the parties to find out what the courts say.

Back to the Maisie Shenandoah v Halbritter matter, the case went through the Federal Courts all the way up to the US Supreme Court where Certification to Hear the matter was denied. The Traditional Oneida Indians, however, filed an Appeal with the BIA in 1995 challenging Halbritter’s claim of authority. Their BIA Appeal was supplemented in 2004 because of new evidence found supporting their argument.

However, the BIA has failed and refused to take any action on their appeal over the past 17 years. None of the pleadings have been reviewed; nor hearings conducted; no arguments heard or decided, nor any of the motions filed on behalf of the Traditionals even though the appeal has passed its 15th anniversary of filing.

The BIA individual assigned to ‘handle’ this appeal is a Mr. Scott Keep. This is the same Scott Keep who was held in contempt of Federal Court in 1996 by US District Judge Thomas Zilly of Seattle for the way Keep handled the north Puget Sound’s Samish Tribe's federal recognition.

After years of having its constitutional rights deprived by the BIA, the Samish Tribe finally won recognition as a result of a lawsuit. In ruling in favor of the Samish, US Magistrate Zilly condemned the BIA and Keep for denying the Samish its Fifth Amendment right to due process. Magistrate Zilly cited the case's "protracted and tortured history ...made more difficult by excessive delays and governmental misconduct."

Judge Zilly wrote that he had "no confidence in the agency's ability to decide the (Samish) matter expeditiously and fairly." And it appears from the decision that Judge Zilly reserved special disdain for Mr. Keep, saying that Mr. Keep” showed an "apparent disregard for ...traditional standards of fair play" and ruled Mr. Keep to be in contempt of court. Although we understand that Judge Zilly later lifted the contempt citation, he left in place sanctions preventing Mr. Keep from ever again "taking any action" involving the Samish Tribe. The Appeal by the Oneida Traditionals still languishes in the dusty boxes stored at the BIA.

And Indian Country expects the BIA to help them out? To find a just solution about anything? After 500 years of invasion, and over 200 years of Indian Wars that have never stopped, and the Cobell Trust situation, why do People still believe that they will find justice in the US Courts? It lies within ourselves. The US Courts might temporarily cause a ‘time out’, but no permanent solution will be found until the People refind the compassion, respect and courtesy for each other and searching for peaceful resolutions with fairness to all.

Maisie Shenandoah and the other Traditional Oneida’s knew that what they were seeking could not come from the US Courts, but only from within the hearts of the Oneida and Haudenosaune People. The Courts could protect the Traditionals from being victims of ongoing violence against them and maybe protect them from being made homeless, but the struggle was not about homes, but about preserving the Traditional self governance and not have their Nation turned into a Corporate Oligarchy with the BIA appointee being the head. The hope remains for a reunified Oneida Indian Nation, a restoration of the Haudenosaune and the Grand Council and a return of the PeaceMakers lessons.


Don Daines is an attorney with over 30 years of experience concentrating in civil rights and creating housing opportunities for low income families. He was privileged and grateful to have served as the pro-bono attorney representing Oneida Wolf Clan Mother Maisie Shenandoah and the other Traditional Oneida Indians in their struggle to maintain and preserve their Oneida Matrilineal form of self government and the Haudenosaune Confederacy against the claim of power by Raymon Halbritter, the BIA appointee. He taught school on the Dine’ Reservation in the early 1970’s, initially at the BIA School at Many Farms, then at Chinle. He also served as the pro bono attorney for the volunteers at the Cherokee Memorial Removal Park on the Trail of Tears at Blythe Ferry, TN, helping them form and establish their 501(c)(3) (nonprofit) status so they could receive donations to be used to help the Memorial. The information provided is not intended, and should not be used, as a substitute for consultation with legal counsel.

33 comments:

Luiseno said...

So if ICRA specifically says “No Indian Tribe in exercising powers of self-government shall—(9) pass any bill of attainder or ex post facto law.” Then how can a Tribe disenroll someone who was a member of that Tribe more that 100 years ago?

'aamokat said...

That is the case of our family, a biased slim majority on the enrollment committee disenrolled our ancestor Paulina Hunter in 2006, who of course is not alive to defend herself as she died in 1899, so all of her descendants are now kicked out of our tribe.

Vaunted tribal elder Antonio Ashman, called so on Pechanga's own official WebSite, an original tribal member who lived in the period of when the Pechanga reservation was created and who was an adult when Paulina Hunter died said in notarized testimony when he was asked if he remembered Paulina Hunter as a member of the band said, "yes, I knew her as such."

Also, tribal elder Dolores Tortuga, who was also an adult in 1899 when Paulina Hunter died, said in the 1915 probate for Paulina Hunter's land allotment when she was asked, "did you know or were you aquainted with the DECEASED PECHANGA INDIAN ALLOTTEE PAULINA HUNTER during her lifetime? Tortuga answered, "yes, I knew her as a neighbor when WE PECHANGA INDIANS lived on the Pauba Ranch near Temecula, California."

So original Pechanga tribal members accepted Hunter as a fellow tribal member but over 100 years later, in 2006, people kicked Hunter out of the tribe.

Anonymous said...

I guess you give hope where hope is so desperately needed....sounds too simply...but if works it might stop some tribes from this continued harm.

I have another question on this topic ....what become of a tribes enrollment laws/ordinances ....just wondering, not trying to start any backlash.

Anonymous said...

grin - I will try to not talk so much this time. some one asked

So if ICRA specifically says “No Indian Tribe in exercising powers of self-government shall—(9) pass any bill of attainder or ex post facto law.” Then how can a Tribe disenroll someone who was a member of that Tribe more that 100 years ago?

This is precisely the question to ask to the US Courts about each and every one of the People who have been disenrolled. I feel there is very good case to be made that disenrollments are equal to and probably much worse "restraints on liberty" than disenfranchisements. The US Courts found that disenfranchisements constituted "custody" in violation of ICRA. Once the US Courts find that an action by the Nation is a violation of ICRA and the restraint on the victim is severe enough to be "custody", then US Courts are obligated and required under ICRA to release the victims from that "custody" by ordering the action of the Nation to be reversed. If disenrollments are found to be "bills of attainder", again, the US Courts have no choice under ICRA but to order the Nation to reverse the disenrollments. We were not his with disenrollments or disenfranchisements in the OIN v Halbritter sad situation, which was a stripping of any and all tribal rights and demolition of homes of those Traditional OIN who opposed and still oppose Halbritter's claim of control over the Nation, which in that case, the US Courts did not find were sufficient "restraint of liberty" to be "custody" nor a "bill of attainder", so while the US Courts condemned what had been done by the Halbritter Nation to Maisie Shenandoah and those who stood with her, the US Court said they were powerless and actually asked Congress to give the US Courts more power to help victims of the type of action done by Halbritter and those who are only temporarily in control of the Tribal Government. Sadly, casino's create an Indian One-Percent who loot the Nation for as much as they can get before they cross-over. But their legacy will remain, and the truth will come out. Again, any increase in US power is an equal or greater decrease in Tribal sovereignty, so wanting more US involvement is actually wanting less sovereignty. At least ICRA can cause a time-out as well as create an accurate record for future generations as well as educate everyone about what is being done, but it won't be a permanent fix because those who only think of themselves and want more trinkets and food for themselves will strain their brains to come up with another way to fulfill their unquenchable thirst for greedy wealth. If you find an attorney who will handle this for you, I am happy to email my legal briefs, court papers and research to them if they feel it might help. They would be in Word.doc format so hopefully, easy to use. The facts of the OIN are very very different than the disenrollments, but the legal research and court citations are directly relevant to the legal issues involved. Again, it is a marathon for which there is no finish line. And the challenge is to not become what you are resisting against. Respectfully, Don

Erick Rhoan said...

The Ninth Circuit in Jeffredo v. Macarro, held that disenrollment under ICRA is not "custody." I wrote about it here if you want to read it.

As for the Bill of Attainder argument, I think it's very interesting and deserves further research. If I were a government attorney arguing on behalf of the BIA, however, I would argue the following points:

1. Disenrollment of Indian tribes are a strictly internal matter of tribal self-sufficiency, and, as such, do not warrant federal interference, let alone federal judiciary interference. [Santa Clara]

2. Building on that, the tribal council's decision does not historically fall within meaning of legislative punishment;

3. Disenrolling improperly enrolled members serves a nonpunitive legislative purpose;

4. And, there is probably a lack of tribal council intent to punish.

We all know that these elements are false based on what we know, but the arguments will be made nonetheless. Overcome them, and there might be a chance for injunctive relief to be granted by a federal court.

Anonymous said...

Thank you Eric for the reference to Jeffredo v Macarro and your excellent blog. I had not heard of this court decision and did not have an opportunity to research it. The decision was a 2-1 decision meaning 2 judges found that disenrollments were not prohibited under ICRA and 1 judge completely disagreed with the other 2 and would have found ICRA prohibited disenrollments, constituted ‘custody’ and therefore, US Courts did have authority and obligation to reverse the disenrollments (free the victim from the custody) under ICRA. The dissenting Judge actually made and agreed with all of the arguments I have been wondering if the US Courts might find. The dissenting judge actually agrees with all of the arguments I hoped a US Court might agree with and I do not it could be said any better then the way the dissenting judge said it. For those who can, I highly recommend finding this decision online, reading it and especially the dissent.

Obviously, we would hope that we would find a US Court that would completely agree with the 1 dissenting judge in Jeffredo. The dissenting Judge wrote such an excellent dissent, addressing every point and question in our favor, that it could be turned into a Brief supporting why disenrollments violate ICRA and the US Courts have the right and obligation to issue and order ‘releasing’ the victims from disenrollment.

Again, "bill of attainder' argument is completely separate and independent of argument that disenrollments constitute sufficient restraint upon liberty to be ‘custody’. Eric, I am glad you agree the ‘bill of attainder’ argument may have merit. A bill of attainder does not require proof of criminal (vs civil) nor does it require proof of ‘custody’ because ICRA explicitly prohibits bills of attainder. All we would have to show is that these disenrollments were a bill of attainder, which I believe a good argument can be made given the other things that the US Courts have found to be bills of attainder. Jeffredo, not any other case I know of has dealt with the question of whether disenrollments are bills of attainder.

The only relief under is ICRA habeas corpus meaning all the court can do is order that the disenrolled be release from disenrollment which should mean reinstatement, but that’s all the relief the US Courts can order. The US Courts cannot order the Nation to pay all lost distributions (that would be ‘damages’), that decision would be up to the Tribal court. Given the undebatable heartless, selfish, greedy attitude of those in power doing the disenrollment (which will be their legacy for future generations to see from the record being created today), it is doubtful that lost distributions will be paid, but again, this struggle is not about money, but about Family and Nation. A reinstatement of all benefits would be prospective (future) only. Thank you Eric. Don

Anonymous said...

A brief follow-up. There is a Washington Law Journal Article 2011 entitled BANISHING HABEAS JURISDICTION: WHY FEDERAL
COURTS LACK JURISDICTION TO HEAR TRIBAL BANISHMENT ACTIONS by Mary Swift in which she argues that the US Courts should not even undo 'banishments' because to do so violates Tribal Nation sovereignty. It can be found at the following web address: (http://digital.law.washington.edu/dspace-law/bitstream/handle/1773.1/1078/86WLR941.pdf?sequence=1)

The author, however, says incorrectly "Two years later (after Poodry), the Second Circuit limited Poodry, finding that tribal disenrollment was not a severe enough restraint on liberty to warrant the exercise of habeas jurisdiction." and then refers to the Shenandoah v Halbritter decision. Shenandoah v Halbritter did not involve "disenrollment", therefore, her statement is incorrect. As previously described, in Shenandoah v Halbritter, I tried to persuade the US Court that what Halbritter had done to Clan Mother and Elder Maisie Shenandoah and the others was equal to or worse than 'banishment', but Halbritter's nonOneida Lawyers were smart enough to not utter the word "banishment" or 'disenrollemnt' in connection to what they had done. The US Court did not find that what Halbritter had done was equal to 'banishment', therefore, no 'banishment', no Poodry relief. "Disenrollment' was never an issue in Shenandoah v Halbritter. The US Court also found that what Halbritter had done was not sufficient restraint upon their liberties to rise to being equal to 'custody', therefore, No 'custody' meant no relief under ICRA.

from my quick read of the Article, I did not find any other US Court decision dealing with the question of whether disenrollment was bill of attainder, nor any other US Court decision deciding whether disenrollment did not violate ICRA even though banishment does. Frankly, I feel the 2 judges in Jeffredo are incorrect. The US Supreme Court could find that disenrollment was in fact equal to or worse than banishment, therefore prohibited by ICRA. No case I found deals with disenrollments as bills of attainder, so that issue seems still open. I'll be quiet because this is a lot of information to digest. Respectfully, Don

Anonymous said...

You two confuse me...what are you trying to defending the pure fact that a tribal government does not have the right to disenroll or ones individaul claim to membership in the tribe...if it is the pure fact that a tribe does not have any right to expel/disenroll, then I think I understand your argument ....not a lawyer, just trying to think through your positions on elevating a case in federal court....one thing I do know is that all the tribal hired guns along with the BIA and justice department will out for blood.....and soveriegnty will be their rallying cry.

Anonymous said...

THERE ARE Banishments that happened at Pechanga just before the Jeffrado ruling showing the disregard and respect for any ORIGINAL PECHANGA PEOPLE and any icra law useing the Bia TO carry out the lies of tribal government of Pechanga I recieved a letter in regards to the meeting Amy Dutschke Tribal leadership conference on Banishment there can be saction brought against the TRIBE CONCERNING TOSOBAL Mr Eban needs a formal complaint to proceed They have been Banished since 2010 from there land on the deed it states some are enrolled how is that BECAUSE MARK TOLD CONGRESS ALL ALLOTEES ARE ENROLLED

Anonymous said...

Don dude,your wrong the court just held that Dis enrollment does not meet the Custody or "detention" requirements. It never hooks federal court and makes it into the second round.

FEDERAL COURT HAS COMPLETE JURISDICTION OVER A REAL BANISHMENT CASE...........

Anonymous said...

. The US Courts found that disenfranchisements constituted "custody" in violation of ICRA.

DUDE wrong again ......Dude people in this chat room have gone to battle over what your talking about....this aint are first rodeo!

Anonymous said...

This is "confused".....I just read through the the case cited by Erick...and agree with "dude"....the details shed more insight for me as to its background and I still say you are up against the ICRA....and do not fault one from trying at all.

Anonymous said...

Check this out ,you can't review dis enrollment at pechanga with the BIA (like san pasqual)because of the tribes constitution.

But how about you review the BIA'S adiministrative procedures regarding what happened (as a U.S citizen)under Title 42 1983 arising from a 5th amendment due process violation and it can be reviewed under the judicial review provisions of the APA act.

Anonymous said...

oh sorry pechanga slip of the tongue, the Rios family could also use that title 42 1983 for their land issue .......it would flop a case right in front of a federal judge.

Anonymous said...

This is what I would do,I would sue the BIA under title 42 1983 1985...(rios family) for 20 million or what ever the court deems proper...arising from a 5th amendment due process violation and it can be reviewed under the judicial review provisions of the APA act.

( which james fletcher acted arbitrary and capriious in his duties as a federal employee )

WHAT A LAW SUIT (UNITED STATES DENIES YOU ACCESS TO LAND THEY GAVE YOU) hahahahaha jajajaja

Anonymous said...

Here's a tactic for the disenrolled allottees....petition the BIA for federal recognition in conjunction with a congressional request, seeking a new reservation within your original homelands, assuming you have the historical backing to convince the bia....you can at least sue them if they fail to give you an honest review....its the same long shot that you would be taking with the "bill of attainder" argument....

Hey....just a sill thought

Erick Rhoan said...

Don, glad you liked the article and thanks for reading the blog.

To comment briefly on the solutions posed by the anonymous posters, I’m afraid there’s some defects in your theories that federal courts will use to dismiss them.

First, 42 USC 1983 is only a vehicle (or method) to bring suit in federal court to obtain remedies for violation of substantive constitutional violations. Here, the underlying constitutional violation is the same matter that we all know federal courts will not hear because it revolves around tribal membership. Even if you dress up your 1983 cause of action around 14th Amendment violations, it’s still the same as asking a federal court to hear a disenrollment dispute. The Santa Clara decision, Jeffredo, and other federal precedent will bar this claim. Depending upon the date of disenrollment, it may even already be barred under statute of limitations. (In California, statute of limitations will be roughly 2 to 3 years from the accrual of the cause of action.)

Second, suing the BIA under the Administrative Procedures Act sounds good in theory, but my guess would be that courts would deny such a motion as well. Courts will set aside an agency decision only if it finds that it acted arbitrarily and capriciously, i.e., whether the agency decision had a rational relationship to its duties delegated to them by Congress. The rational basis standard is a notoriously low burden for the government to meet since they can effectively argue that they take a cautious and hands-off approach to intervening in membership disputes because such disputes are inherently intimate to tribal sovereignty. Essentially, it’s another form of denial to hear the dispute based on Santa Clara.

Third, coupling a federal cause of action with a Congressional “request” to essentially recognize the disenrolled as members of their own tribe or re-package them into the old one will be dismissed outright as a violation of federalism. Under what is known as the “Political Question Doctrine,” federal courts will not intrude into matters that are specifically committed to the political branches for relief. Here, Indian tribes are regulated ONLY through the Commerce Clause and, to some extent, the Property Clause. Also, Congress has the 7-point criteria to determine who is or is not an Indian tribe. Because the Constitution specifically delegates regulation of Indian tribes to Congress, and its agencies like the Bureau of Indian Affairs, a court will dismiss this easily.

Believe me, I’m all for finding creative ways to challenge a disenrollment dispute, but short of a Congressionally legislated miracle, I’m not confident in seeking help from the courts. The Bill of Attainder, while only a theory at this point, is one of few solutions I think has even a morsel of merit.

Anonymous said...

O well....just thought I'd throw that out there for thought....everyone seems to be spinning their wheels and getting nowhere.

Erick Rhoan said...

That's the name of the game, I'm afraid.

Anonymous said...

That was great Erick,someone who knows there shit........

1.I agree that the disenrolled waited to long to bring suit its been 6 or 10 years for some of them.

2.Lets put disenrollment aside and talk about the court upholding IGRA (like Judge gonzalez did in the san pasqual ruling under the APA review provisions).

3.Clearly she states peoples rights are violated if they go without per capita and money gets placed in escrow UNDER IGRA.....

What do you make of that Eric?

4. Might the people in the moratorium challenge Echo hawk under APA review and 290.16 (2) and (4) don't quote me....

that the tribe cannot discriminate when passing out per capita or violate someones indian civil rights and ......(4) they must maintain requirements as to who is eligible to receive per capita.

That means if enrollment is open every year in january ,they better be enrolling people.

Clearly in violation of IGRA and may be reviewed by the court under the APA act.

JUST LIKE judge gonzalez did?

What do you think eric?

Erick Rhoan said...

Don't know, to be honest with you, because I don't follow case law under the Indian Gaming Regulatory Act. The inner-workings of Indian-State gaming compacts and its politics has always been something above my head. You probably know more about it than I do.

Do you know what IGRA allows as remedies for violating it? Is it just money damages, or can injunctive relief be allowed?

Anonymous said...

Well nothing till just that ruling which placed per capita in escrow accounts for who were (disenrolled by echo hawks word)
and the judge is reviewing the case under the apa act.

this is huge because she said she did not want to violate IGRA,so if one court does it ,the anothers should follow (in theory)

But what I am trying to say if your going to enforce IGRA your going to enforce all of it!

Anonymous said...

Larry Echohawk Violated IGRA. He states Sec. 2701 Findings of IGRA. Sec. 2701 Findings
The Congress finds that -
(1) numerous Indian tribes have become engaged in or have licensed gaming activities on Indian lands as a means of generating tribal governmental revenue;
(2) Federal courts have held that section 81 of this title requires Secretarial review of management contracts dealing with Indian gaming, but does not provide standards for approval of such contracts;
(3) existing Federal law does not provide clear standards or regulations for the conduct of gaming on Indian lands;
(4) a principal goal of Federal Indian policy is to promote tribal economic development, tribal self-sufficiency, and strong tribal government; and
(5) Indian tribes have the exclusive right to regulate gaming activity on Indian lands if the gaming activity is not specifically prohibited by Federal law and is conducted within a State which does not, as a matter of criminal law and public policy, prohibit such gaming activity.
Where is the violation.

Anonymous said...

. Here is the sec pertaining to per capita

Sec. 2710. Tribal gaming ordinances of the Indian Gaming Regulatory act
(2) The Chairman shall approve any tribal ordinance or resolution concerning the conduct, or regulation of class II gaming on the Indian lands within the tribe's jurisdiction if such ordinance or resolution provides that--
(A) except as provided in paragraph (4), the Indian tribe will have the sole proprietary interest and responsibility for the conduct of any gaming activity;
(B) net revenues from any tribal gaming are not to be used for purposes other than--
(i) to fund tribal government operations or programs;
(ii) to provide for the general welfare of the Indian tribe and its members;
(iii) to promote tribal economic development;
(iv) to donate to charitable organizations; or
(v) to help fund operations of local government agencies;
(C) annual outside audits of the gaming, which may be encompassed within existing independent tribal audit systems, will be provided by the Indian tribe to the Commission;
(D) all contracts for supplies, services, or concessions for a contract amount in excess of $ 25,000 annually (except contracts for professional legal or accounting services) relating to such gaming shall be subject to such independent audits;
(E) the construction and maintenance of the gaming facility, and the operation of that gaming is conducted in a manner which adequately protects the environment and the public health and safety; and
(F) there is an adequate system which--
(i) ensures that background investigations are conducted on the primary management officials and key employees of the gaming enterprise and that oversight of such officials and their management is conducted on an ongoing basis; and
(ii) includes--
(I) tribal licenses for primary management officials and key employees of the gaming enterprise with prompt notification to the Commission of the issuance of such licenses;
(II) a standard whereby any person whose prior activities, criminal record, if any, or reputation, habits and associations pose a threat to the public interest or to the effective regulation of gaming, or create or enhance the dangers of unsuitable, unfair, or illegal practices and methods and activities in the conduct of gaming shall not be eligible for employment; and
(III) notification by the Indian tribe to the Commission of the results of such background check before the issuance of any of such licenses.
(3) Net revenues from any class II gaming activities conducted or licensed by any Indian tribe may be used to make per capita payments to members of the Indian tribe only if--
(A) the Indian tribe has prepared a plan to allocate revenues to uses authorized by paragraph (2)(B);
(B) the plan is approved by the Secretary as adequate, particularly with respect to uses described in clause (i) or (iii) of paragraph (2)(B);
(C) the interests of minors and other legally incompetent persons who are entitled to receive any of the per capita payments are protected and preserved and the per capita payments are disbursed to the parents or legal guardian of such minors or legal incompetents in such amounts as may be necessary for the health, education, or welfare, of the minor or other legally incompetent person under a plan approved by the Secretary and the governing body of the Indian tribe; and
(D) the per capita payments are subject to Federal taxation and tribes notify members of such tax liability when payments are made.
By Echohawk denying there tribal rights he his violating his court order and IGRA.

Anonymous said...

Those are all correct and to be quite honest this is the first time I have seen a lawyer (san pasqual) ever use the APA act to challenge and enfore IGRA and it worked.

Well the funds were placed in a account EVEN if they lose (IGRA)was still ENFORCED.

Anonymous said...

Those are correct and also you have to dig deeper under the revenue allocation plan for tribes (those provisions) get down to it.

Anonymous said...

I’m not a lawyer or law student. If you could point out how IGRA was enforced if the Alto family was put back as full tribal members and how Echohawk was in compliance with his court order.

Anonymous said...

Well first I am not a lawyer,...

1.The fact that she placed funds in an escrow account under the Jurisdiction (provisions) under IGRA

2. Trust me,without IGRA those funds would not be in there.

Now do you feel she did not enforce IGRA?

3.I am not trying to be mean but the courts do not decide who is a Indian (the tribes do).

4.I believe the Judge would rule against Echo Hawks adiminstrative (screw ups)Forcing him to say he was wrong to the alto family.

(if it goes in favor of the alto's)

Lets hope so...

Anonymous said...

I might have seen it wrong but wasn’t it EchoHawk who wrote the letter to put the money in escrow after the judge ordered him to place the alto family as full tribal members. Yes the courts don’t say who is a member but for San Pasqual the B.I.A. does. EchoHawk is B.I.A. he was ordered to put them back because of his conduct in the disenrollment of the Alto family.

Anonymous said...

From what I read in the law suit the alto's lawyer asked the judge to direct echo hawk to place the per capita in escrow with a third party to hold it,and not to require the alto's to have a bond to secure the (per capita) in escrow.

The judge waived the bond fee for the alto's and the judge directed echo hawk to tell the tribe to place the funds in a escrow account.

Is the case over ? ARE THEY BACK IN THE TRIBE?

Anonymous said...

OP could you repost Larry EchoHawks Letter from the San Paqaul court case

smokeybear said...

Thank you "Very Much."..."Nice!" You have a way of putting these "Grievious Acts," perpetrated by the B.I.A., into "Perpective," with their "Hidden Agenda" for nothing more then $$$ and there "Underlying Quest" to keep the "Corrupt and Criminal Tribal Leaders," of their choosing, in power for their own "Self Interest!" They know, all too well, that the I.C.R.A. has no substance, as it is written, to actually protect the "Native American Indian" from these "Criminal Acts." Way back in the 1960s, when Congress held a series of hearings on the subject of the authority of Tribal Governments. These hearings told about the abuses that many tribal members had endured from the "sometimes corrupt, incompetent, or tyrannical tribal officials." In response to these occurrences, the Indian Civil Rights Act was enacted. To what "END?" It can't be stated as "Sometimes" Corrupt, Incompetent, or Tyrannical Tribal Officials" any longer, for with the advent of "Casino," in the hands of these "Greedy, Corrupt,Criminal, and Money Hungery Tribal Leaders," it is "Commonplace." Illegal Disenrollments and Banishments to "Bolster" their "Quest" for more $$$ at the "Expense" of "Legal Lineal Decendents." And your right, the B.I.A. isn't going to help the "Oppressed Indian" anytime soon....."There's no Money in it." The "I.C.R.A is ineffective, with no "Provision" to take down these "Criminals." The "I.C.R.A. needs to be "Revampt" to include these "Provisions."

Mary Swift said...

Re: Don's comment. Thank you for taking a look over my article! I'm glad people are coming across it in research on disenrollment and banishment.

I'd just like to correct the statement about Shenandoah not being about disenrollment. That case talked extensively about how disenrollment does not rise to the level of banishment in terms of what constitutes "custody." However, I go on to say in my argument section that the distinction between disenrollment and banishment is often just semantics--the effects, punishment, and hardships suffered because of disenrollment can be just as severe as banishment, if not more so. As you said Don, the clever lawyer would use the term banishment instead of disenrollment when teeing up a case.

My argument is essentially that (in part), given the scheme of ICRA and limitations of habeas corpus (the only route for federal court review of tribal ICRA violatiosn), there will not be much relief in federal court for disenrollments. Congress can respond and change the law, but until then, the hands of federal court judges are mostly tied.

My article is available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1982796.