Thursday, December 26, 2013

San Pascual Disenrollment of Alto Family GOES BACK TO BIA which FAILED to PROTECT THEM

IN an earlier post, we linked to the 9th Circuit Decision on the ALTO CASE.

We have the sections below that are breaking new ground in disenrollment case law:


(1)  P. 2, fn. 2. The Ninth Circuit understands that membership disputes "have been proliferating in recent years, largely driven by the advent of Indian gaming."    The tide may be changing.

(2) The Ninth Circuit for the first time clearly states that the federal courts have jurisdiction to review BIA actions under the Administrative Procedures Act (APA). On P. 25, the Ninth Circuit wrote "That the substantive law to be applied in this case is tribal law does not affect our jurisdiction over an APA challenge to the BIA's decision."    This is a very important statement from the appellate court because Tribes have used the "tribal law" arguing an intra tribal dispute as a defense to get cases dismissed around the country when a disenrollment action occurs, even though it also involves BIA action or inaction.

(3)  P. 17, The Ninth Circuit discusses the BIA's fiduciary duty to protect the Alto's access to tribal rights and benefits and recognizes the importance of preserving the status quo by analogizing removal off the federal rolls as similar to immigration proceedings (See P. 35).       This is important because being  removed from the federal roll is similar to losing citizenship and all rights.

(4) P. 26-36, the Ninth Circuit clearly sets out the reasons the Tribe is not entitled to "sovereign immunity" in the Alto case.              Disenrollment cases around the country have been dismissed based on sovereign immunity grounds, so this is a big step in the right direction. 

READ MORE ABOUT SAN PASCUAL AT THESE LINKS

San Pascual Evictions
San Pascual II
Larry Echo Hawk Screws Alto Family
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