Thursday, June 19, 2014

COOK Family LOSE APPEAL at Shingle Springs: Disenrollment STANDS, But can RE-Apply for Membership

The tribal court for Shingle Springs has denied the Cook family appeal, not on the merits, but because they tribe followed the ordinance rules

HERE IS THE MONEY QUOTE:
It seems to this Court that the difficulty stems from the Department of the Interior's system wide failure to keep complete, clear records, and make those available to Indian individuals while simultaneously imposing their own census rolls on tribes to use as the basis for their membership criteria. 

WHAT do you think? The order is after the jump




Under the Shingle Springs Band of Miwok Indians Enrollment Ordinance, the Tribal Court has jurisdiction over appeals of Tribal Council decisions to disenroll individuals and, 
"shall only review and set aside the decision of the Tirbal Council, if the Tribal Court Finds it to be:
(i) Arbitrary, capricious and an abuse of discretion, unsupported by substantial
evidence·, or otherwise not in accordance with Tribal law; or
(ii) Without observance of procedure required by this Ordinance."
Petitioners did not argue, nor did the court find any other evidence, that Respondent failed to observe any procedure required by the Enrollment Ordinance. Therefore the only question the court was to consider was whether or not the Respondent's decision was "[a]rbitrary, capricious and an abuse of discretion, unsupported by substantial evidence, or otherwise not in accordance with Tribal law." 
There were efforts by both parties to define the legal standard of review, "arbitrary and capricious", however, the standard is well defined in the Enrollment Ordinance. "Arbitrary and capricious" is "an abuse of discretion, unsupported by substantial evidence, or otherwise not in accordance with [Tribal] law." Thus to overturn a decision of the Tribal Council on a matter of disenrollment the Court must find the decision was an abuse of discretion, unsupported by substantial evidence or otherwise not in accordance with Tribal law. 

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