Wednesday, November 19, 2014

BIA Successful in Throwing PALA Disenrolled Under The Bus in Aguayo v. Jewell

Judge Cynthia Bashant wasted no time in denying Plaintiff's motion.   
See Documents here: Aguayo v. Jewell

Sally Jewell doesn't swear to protect ALL Natives


IV. CONCLUSION & ORDER9
The Court sympathizes with the hardships that Plaintiffs face as a result of their
disenrollment from the Pala Band. The significance of terminating membership from
one’s tribe is not lost. However, the Court’s role in this situation is “not to substitute
its judgment for that of the agency,” but rather to examine whether there is a “rational
connection between the facts found and the choice made” by the agency. Nw. Envtl.
Def. Ctr. v. Bonneville Power Admin., 477 F.3d 668, 687 (9th Cir. 2007) (quoting State
Farm, 463 U.S. at 43) (internal quotation marks omitted). Under the standard
prescribed by 5 U.S.C. § 706(2)(A), which is highly deferential to the agency, Plaintiffs
fail to meet their burden to demonstrate that the Assistant Secretary’s decision isin any
way “arbitrary, capricious, an abuse or discretion, or otherwise not in accordance with
law.” See 5 U.S.C. § 706(2)(A); San Luis & Delta-Mendota, 747 F.3d at 601.

In light of the foregoing, the Court DENIES Plaintiffs’ motion for summary
judgment, and GRANTS Defendants’ cross-motion for summary judgment. 
Accordingly, this Court affirms the Assistant Secretary’s June 2013 decision
concluding that “the Regional Director acted based on a proper interpretation of authority under tribal law to review the enrollment appeals[,]” and that “the Department
has no authority under Federal or tribal law to decide enrollment issues for the Band.”
(See AR 23.) 
IT IS SO ORDERED.

Read MORE about PALA DISENROLLMENTS:
Pala Disenrollments
Pala dispute
Pala disenrolled 162 members

36 comments:

Anonymous said...

Sad ruling,.

Shawn said...

Sad, but I didn't expect the courts to get involved. They know it is wrong, as does the BIA and ASIA. In my opinion the BIA, ASIA and our court systems have failed the Pala disenrolled. The 1989 final decision by the ASIA that Margarita Brittain was a full blood should have mandated Pala to reinstate those disenrolled. They are just as corrupt as the Pala EC. Robert Smith will one day suffer for the wrong he has done and the pain he has caused so many good people. Karma is a bitch and if that doesn't happen he has to face their ancestors and God Almighty for all he has done. Shame on this evil man and his corrupt EC.

Anonymous said...

Judge Cynthia Bashant was nominated by Dianne Feinstein to President Obama who appointed her last year to be a Federal Judge, and we all know how much Feinstein has done for the disenrollees. All the Judge did was go in her office and call Feinstein who told her just what to do. Things will change eventually and all of these people who think they are doing good will realize how many lives they have hurt and destroyed and somewhere along the line they have to make up for it. The fight is not over yet.

Reinstatement_Restitution said...

The judge ruled on the motion as it was submitted and argued. Maybe the lawyer has some responsibility to effectively argue the points, to understand the APA restrictions, to properly address the administrative record, and to know the contents of the AS-IA's ruling. Judge Bashant makes several telling comments on the manner in which the lawyer for the plaintiff failed to properly support the arguments in the motion for summary judgment.

By the way, the BIA still claims to uphold the 1989 Final Decision. The court rules that the decrease in blood degree was not part of the administrative record. Pretty good joke. There was a specific appeal filed regarding the usurpation of the federal government's power to determine blood degree associated with this case.

I wonder why that was completely ignored?

Anonymous said...

do u think this has a bearing on alto case

White Buffalo said...

Democrat or republican, none of that political Bull$%() matters both sides have failed to uphold the constitution and provide a fair remedy for civil rights abuses. The legislator is the one who is responsible for creating the laws that the courts follow. This is not the first case to be thrown out because of a lack of practical law. This crap has been happening since before 2004 and there have been republican led congress's and democratic congress's and not one of them have lifted a finger to protect the individual Indian.

White Buffalo said...

Democrat or republican, none of that political Bull$%() matters both sides have failed to uphold the constitution and provide a fair remedy for civil rights abuses. The legislator is the one who is responsible for creating the laws that the courts follow. This is not the first case to be thrown out because of a lack of practical law. This crap has been happening since before 2004 and there have been republican led congress's and democratic congress's and not one of them have lifted a finger to protect the individual Indian.

Shawn said...

Did I miss a part in tr motion to dismiss about the savings clause? The court says decisions made under articles basically don't exist once the 97 "constitution" went into effect but they completely overlooked the savings clause in the constitution

Anonymous said...

I know this is off topic but what was the outcome of the election in pala?

Anonymous said...

Case not closed. Pala Disenrolles will be in the ninth court of appeals shortly. The BIAs decision that Brittain was full blooded should be ruled "claim preclusion". All is not lost Pala people. Keep your heads up. fights not over.

FUCK_Reinstatement_Restitution said...

Smith and Nieto both won in the elections im glad to announce and won by a land slide so basically the tribe has spoken

Anonymous said...

The tribe has spoken my a..., not everyone was allowed to vote.the EC made sure of that. The cheating,stealing lies won't last forever. Someday the EC will have to answer to a higher authority.

A. Nony Mous said...

I hope smith goes out smiling when his coronary comes, like a child into the remnants of a cholesterol laden dream.

Anonymous said...

Sorry 11 votes wouldn't of made a difference

Anonymous said...

Maybe not. But the 165 wrongfully disenrolled sure as hell would've

Anonymous said...

Voting in a Pala election really everyone knows it's rigged. They don't give us the real count. Robert would not risk losing all his power for something as meaningless as an election. To him it's business as usaul.

Anonymous said...

I say enough talk. Lets take care of this the way things would've been taken care of in yester years. March on the tribal hall. Drag thier asses out and take care of business.

Anonymous said...

I've been saying that for a while but certain people wanna do it the right way legally. Remeber it's only a matter of time. The corrupt Pala EC will be out eventually just like the mafia with their power they are always taken down at some point and their corrupt actions brought to light.

Anonymous said...

I think Mr Johnson should shut his face. He has no idea whats going on. Is he even a recognized tribal member from anywhere. I doubt it. He thinks he knows but he has no idea.

Anonymous said...

I think Mr.Johnson has been spot on with his comments.

White Buffalo said...

I do not know who Mr. Johnson is, but I do know the leadership of any tribes have the law on their side because of the governmental status they hold, and the umbrella of sovereignty to hide behind. I would have loved to visit Marcy M. Bitch M. with some family members. They would have seen the error of their ways real quick. Unfortunately that would have seen me arrested and sent to prison and they would then be able to use those actions to further hurt our purpose and cause. It is not even good to talk about this kind of thing publicly because if something was to happen to one of those assholes a post could be used in a court of law because this is a public form. I would also caution that an IP is still registered even if the post is anonymous.

Anonymous said...

Did anyone else see Robert getting picked up by the helicopter yesterday on the ballfield he walked out of the tribal hall straight to the helicopter. To take him to the airport to fly on the private jet probably. ALL AT THE TRIBES EXPENSE!! COME ON PALA WAKE UP YOU CANT BE THAT STUPID?? Who does he think he is?? Expenses like that are the reason there is no bonuses and percap keeps dropping. There are so many other less expensive ways for the EC to travel. If Pala finances are as bad as they say shouldn't they be cutting down on all expenses?

Reinstatement_Restitution said...

Judge Bashant has very specific comments about the failure of the plaintiff's attorney to argue points in the motion. These comments could be used as instructions to further clarify arguments in an appeal, but they are also a reflection on the ability and preparedness of the attorney.

There are some clear faults with the decision, including the fact the Judge says the decrease in blood degree was not part of the administrative record. The truth is that there was a specific appeal filed that challenged the authority of the Pala EC to change blood degree. Now there was a preliminary agreement to limit the administrative record because of its scope and extent, and I am not privy to what exactly was excluded since I am not a client of Thor Emblem. If he agreed to exclude that appeal, then it was an error in judgment since the Plaintiff's argue that BIA is bound by 1989 Final Decision, and the disenrollments were justified by the decrease in blood degree to Margarita Brittain.

My status as a tribal member has nothing to do with the relevance of my comments. My assertion is that these are the facts and I can cite the evidence that supports them. On the other hand saying I should shut my face because I don't know what is going on is not supported by anything other than an inane opinion.

It is the kind of bullying and intimidation that is expressed by those who want to suppress the truth and the facts, and I have come to expect it. In this instance I have read the decision, noted the specific comments, and did your thinking for you. It is not my fault if you like to sit on your thoughts and let them percolate through your posterior.

By the way, the Savings Clause of the Pala Constitution was not cited as part of the Motion for Summary Judgment that was denied. It might have been a useful argument to say that the Pala General Council voted to change Margarita Brittain's blood degree to full blood and that the Pala EC does not have the authority to overturn a General Council decision. There may still be an opportunity to bring that argument into play, but not in an appeal. New evidence and arguments won't be considered in an appeal. It would be limited to the facts, evidence, and arguments of the motion and cross motion.

Anonymous said...

So R and R if the case were to go back into the court of appeals they could not use the savings clause as part of why the 89 decision should upheld? I still feel that the savings clause should have been considered by the BIA when appeals originally went in and that would have been the end of the disenrollents right then and there.

Reinstatement_Restitution said...

The idea of an appeal is simple. The party on the wrong side of the decision tries to argue that the decision is incorrect and should be reversed or the motion should be dismissed. Only the matters of the decision can be argued in court. If the Savings Clause wasn't part of the decision it would not be considered in the appeal, and that is the case here.

Like I said before there are problems with this decision, and definite grounds for appeal. I don't want to go into anymore detail for fear of offending my cousins. It is their action and they are deeply vested in it. I only bring up the problems with the Plaintiff's arguments noted in the Judge's decision and hope that they get an action plan from their attorney before committing to an appeal. Especially in view of the fact that only the elements of the decision can be argued on appeal.

Anonymous said...

HOW MANY INDIAN CASES HAVE YOU HAD BEFORE YOU REINSTATMENT_RESTITUTION? JUST WONDERING BECAUSE YOU SEEM TO KNOW SO MUCH ABOUT INDIAN LAW.

Anonymous said...

He's explaining how the case laws work not indian cases. Can't you read. There are rules to follow. I don't know why you people find it so hard to believe. That the evil doers work so hard to continue the wrongs. That you would think we will lay down and go away. Don't you pathetic people realize that we will fight just as hard to right the wrongs. Wake up moron. It's physics. For every action. There is an equal and opposite reaction.

Reinstatement_Restitution said...

It was a Federal Court with a Federal Judge reviewing a Federal Agency action. In depth knowledge of tribal law was not required to analyze this decision. I do think the Motion for Summary Judgment had merit, and am disappointed that none of the points in the motion were granted by Judge Bashant.

White Buffalo said...

We Miranda's/Apis have been through the judicial process. The lawyers of the tribe know that for an opponent to win the opponent must spend more to win. Remember the tribe has a lot more money. Then there is the political influence that can be put on the court to lean a certain way. The courts have been made to understand they should not legislate from the bench on issues of sovereignty and governmental culpability, so they are not going to create a precedent that supersedes current law. That would create a paradox that even the Supreme Court does not want to settle. The paradox is more commonly know as an infringement on the separation of powers act in our US constitution. I know this because as I have said we have been there and we were told this. Help us to change the law, so that we may see our rights and standing restored.

Reinstatement_Restitution said...

White Buffalo,
I commiserate with your situation. My grandfather was a Magee, and an enrolled Pechanga member. The business of stealing our Indian citizenship and heritage should not be left up to the BIA, the Courts, or even tribal leaders. One day we are citizens of a sovereign nation, and the next we have no tribal rights through the powers of sophistry and manipulation of the law.

If we are to prevail we all must become more sophisticated in our understanding of the law. You point out the principle of the infringement on the separation of powers, and now that principle can be tested by the attorney clever enough to grasp the subtext of Judge Bashant's decision.

The attorneys for the DOI explained that a federal order no longer applies because the controlling law has changed. They argued that the Pala Constitution and its Enrollment Ordinance is now the controlling law and supersedes the 1989 Final Decision, and the judge concurred. So what law controls the BIA? Is it federal law and federal regulations, or is it tribal law?

Under the separation of powers act the US Government cannot infringe on the sovereign powers of an Indian nation, but the reverse is also true. A federal judge should not rule that a tribal law supersedes a US Agency Order.

It is an argument that can be challenged. This is what I mean when I say there are problems with this decision.

Anonymous said...

but who enforces tribal law if the tribal government officials are breaking the tribal laws.

Anonymous said...

The guidance @ Pechanga was created by our ancestors. However today it's the disrespectful actions and dishonor our ancestry and their descendants that speak louder than words. The bad actors and supports of their actions have to face the truth sooner or later. No matter what, the truth will always overcome lies and bad deeds. Our Ancestors went through lies and misinformation by outsiders, but they made it. Was it peaceful and respectful? No, but they stayed truthful and recorded the history and now we have to do the same. Protect the truth and recorded the bad actions from within the Bands who have lost the respect of "ALL".

White Buffalo said...

I have a couple of questions regarding the constitution and by-laws of Pala. Did the tribe change the constitution by vote of the general membership to exclude the BIA or take away their plenary power to be the arbitrator of enrollment decisions? It was my understanding the tribe allowed this action by the BIA. If this is the case when did it happen and did the BIA approve of the change to the rules? If this did not happen and the tribe is still under the same rules then the plaintiff(s) have an actionable point of law in the appeal. It might turn out that the object of the argument is the inaction of the BIA to uphold or protect the integrity of its own agreement.

Reinstatement_Restitution said...

The Pala General Council voted to adopt a Constitution in 1994. The former governing document delegated power of decision on appeal of enrollment disputes to the BIA. It was under this governing document that the 1989 Final Decisions were issued, and the Band was ordered to enroll the qualifying descendants of Margarita Britten.

In 1997 Chairman Robert Smith claimed that the General Council ratified a Constitution and submitted it for certification to the BIA. The ratification vote was purportedly conducted at a General Council meeting that had 10 days notice (and not 14 days as required by the Articles of Association) and the tally was 27 in favor and 0 opposed.

In 2000 Pacific Regional Director Amy Dutschke replied to the request for BIA certification of the Pala Constitution with recommendations for revision, and said that after their incorporation certification would be issued proactively to 1997. Robert Smith responded to the RD's letter stating that the Tribe had rejected the BIA recommendations and that certification should be immediately issued.

We can find no one on the General Council who can state with certainty that they had a chance to review the Constitution before it was ratified. No one can produce a review copy of the Pala Constitution prior to its ratification, or preliminary drafts or versions, or General Council meeting minutes in which the process of Constitutional development was discussed, members consulted, or even given an opportunity for input.

The Constitution that was ratified changed the BIA power on enrollment appeals to recommendation only. The Plaintiff's assert that the ratification was improper. The AS-IA ruled that the Band voted to adopt the Constitution in 1994, and ratified the Constitution in 1997, and that meetings and elections were used interchangeably to amend the governing document.

Since that time the Pala Executive Committee has amended the Constitution with the inclusion of an Enrollment Ordinance. The stated intent of the Ordinance is not to affect the membership status of those already enrolled. The actual intent of the Ordinance is to imbue the Executive Committee with wide ranging powers to revoke tribal membership based on review of existing applications.

According to the Motion for Summary Judgment the plain language rule applies and that the Band cannot have an Ordinance whose stated intent is in direct opposition to its actual intent. The AS-IA determined that the stated intent was contained in the preamble and is merely introductory, and that the body of the Ordinance is law. This is in concordance with the interpretation of the Pala Executive Committee to whom he deferred. The judge agreed that it was a reasonable determination based on a precedent in Hawaii.

I contend that there is grounds to appeal based on the change in controlling law and the separation of powers act. The BIA issued an order to enroll that was rendered moot by a change in tribal law. Tribal law should not affect a federal order, the Pala EC does not have the authority to change a blood degree determination made by the AS-IA, and the matter of blood degree was of primary importance in the administrative record.

Reinstatement_Restitution said...

Sorry, not proactive certification, but retroactive certification. My apologies if this caused any confusion.

Anonymous said...

Should have said that in the first place Mr Johnson. The PALA disenrolles do have a case. And it will be fought at an appellate court.