Tuesday, June 9, 2015

Should BIA's AMY DUTSCHKE Be RECUSED in San Pasqual Matter OR Should She Issue the 25 CFR 48.9 Notice She Failed to Provide in 2006?

It appears that in the San Pasqual matter, BIA Director AMY DUTSCHKE is going to decide whether the acting BIA director at the time made the correct decision on blood degree forthe San Pasqual tribe.       The acting BIA DIRECTOR at the TIME??       AMY DUTSCHKE!  


Amy Dutschke
Bureau of Indian Affairs

This seems very legitimate grounds for recusal in this matter OR will she admit HER error and issue the 48.9 notice to the San Pasqual descendants mandated by the regulations


 A couple of important things to know about her analysis:

1. 25 CFR 48 is THE enrollment statute of the San Pasqual Indians.
   
This is confirmed in the letter Amy send to Washington by Amy  (this follows the mandate of 48.9)
We will discuss the violation of Acting Assistant Secretary, Michael Olsen, under 48.10 at another time..

2.  She states at paragraph 3, "upon review of the all the documents presented by all parties, . . . "   What?  The enrolled descendants never got notice, and were deprived of their rights to submit THEIR documents.  

This is exactly what the San Pasqual have been writing to the her and Secretary Washburn about for more than a year, THE DESCENDANTS were never given notice under 48.9, never had an opportunity to respond, never had an opportunity to submit their documents to show that the 1928 application is incorrect and that Jose Juan was a full blood San Pasqual Indian.  There is overwhelming evidence from the internal records of the BIA and the National Archives that the BIA failed to consider or put forth!

3.  After a meeting with Robert Eben in April 2014,  attorneyAlexandra McIntosh wrote to Amy Dutschke and provided to her all census records 1852 through 1955. HOW could the BIA enroll anyone without having all of the census 
records because under a FOIA they stated that the only
census records they had were 1886 and 1910.   DON'T THE FACTS MATTER?

4.   55  pages of responsive documents received via FOIA show once again they never gave notice to the San Pasqual descendants enrolled by the SAN PASQUAL TRIBE in 2005.

CAN'T ANYONE GET IT RIGHT AT THE BIA?

52 comments:

Anonymous said...

This is terrible.

HOW can she look herself in the mirror? Does she check her wallet first? What is she trying to accomplish?

Anonymous said...

What has been done to the San Pasqual by the Bureau of Indian Affairs is outrageous. Please log on to change.org and sign the petition in support of the San Pasqual. Every signature sends an e-mail to Amy Dutschke and Kevin Washburn, BIA!

Anonymous said...

Under 25 CFR 48.8, “ The Director shall review the reports and recommendations of the Enrollment Committee and shall determine the applicants who are eligible for enrollment in accordance with the provisions of §48.5. The Director shall transmit for review to the Commissioner and for final determination by the Secretary, the reports and recommendations of the Enrollment Committee relating to applicants who have been determined by the Director to be eligible for enrollment against the report and recommendations of the Enrollment Committee, and the reports and recommendations of the Enrollment Committee relative to applicants who have been determined by the Director not to be eligible for enrollment against the reports and recommendations of the Enrollment Committee, with a statement of the reasons for his determination.

The documentary evidence clearly demonstrates that the then Superintendent took action under 25 CFR 48.8, because there were SOME of the April 2005 San Pasqual descendants enrolled.

Demand was made through the Freedom of Information Act for the Bureau to produce any notices to my clients as required by §48.9 and/or §48.10. None were produced. Nor can any be produced, because no notice has ever been given by any department, at any time, to any of my clients.

It is abundantly clear the Bureau failed in every regard to communicate with my clients, as mandated by the regulations, which is a violation of their due process rights.

Under 25 CFR 48.9, “If the Director determines that an applicant is not eligible for enrollment in accordance with the provisions of §48.5 he shall notify the applicant in writing of his determination and the reasons therefor. Such applicant shall then have thirty (30) days from the date of the mailing of the notice to him to file with the Director an appeal from the rejection of his application, together with any supporting evidence not previously furnished. The Director shall forward to the Commissioner the appeal, supporting data, and his recommendation thereon, and the report and recommendation of the Enrollment Committee on the application.”

The Bureau has been put on notice by my office, as well as by a number of my clients, that the San Pasqual descendants rights have been violated. The Bureau failed, and continues to fail, to provide to each of the San Pasqual descendants enrolled in 2005 notice of eligibility for enrollment OR an alleged non-eligibility for enrollment so that appellate rights may be exercised. The failure of the Director to do so is a violation of §48.9. Therefore, demand is made that the Director provide notice, forthwith, so that my clients may be recognized as enrolled; OR that my clients may exercise any and all of their appellate rights.

The interests of the San Pasqual descendants enrolled in April 2005 have been adversely affected, and their ability to protect their interests are impeded by, the failure of the Pacific Regional Director, Sacramento, Bureau of Indian Affairs, to take action.

LITTLE DID EVERYONE KNOW THAT IT WAS AMY DUTSCHKE HERSELF THAT FAILED TO PROVIDE NOTICE TO THE ENROLLED DESCENDANTS. NOT UNTIL THE PRODUCTION OF THIS LETTER UNDER THE FREEDOM OF INFORMATION ACT DID ANYONE KNOW THAT AMY DUTSCHKE WOULD MISSTATE, MISREPRESENT, WAS INACCURATE OR FABRICATE THAT "ALL EVIDENCE WAS PRESENTED BY ALL PARTIES." NO IT WAS NOT! THE SAN PASQUAL DESCENDANTS DID NOT RECEIVE NOTICE. THE SAN PASQUAL DESCENDANTS WERE DEPRIVED OF THEIR DUE PROCESS RIGHTS. THE SAN PASQUAL DESCENDANTS DID NOT PROVIDE THEIR DOCUMENTS. IT IS TIME THAT THIS NOTICE BE GIVEN AND THE TRUE SAN PASQUAL COMPLETE ENROLLMENT IN THEIR TRIBE!

Anonymous said...

Amy did the same thing to the Pala disenrollees in omitting certain papers in the packet sent to Kevin Washburn. And her niece is Pala's lawyer, and she and Robert are very good friends. She tells him everything she knows and helps him stay in power. She is hard to fight, she and Frances Muncey always say it is intertribal. They know that they have to abide by some of the BIA standards to avoid an in-house investigation, so they send official letters, (like the ones claiming the Pala disenrollees do belong and have the blood), knowing that the Tribal Committee is going to stick with what they want. I thought the BIA was suppose to help all Indians, not just the corrupt ones.

Anonymous said...

So, to be clear,

Amy Dutschke was BAD as an acting Director, and then once she got more power...she was ... WORSE?

Anonymous said...

It will probably sit on her desk forever.

Anonymous said...

Should this go higher than AMY?

Anonymous said...

Either she can given the true San Pasqual descendants their 48.9 notice, that she failed to give in 2006 OR it WILL be going higher!

Anonymous said...

It's not going anywhere. BIA deals with Tribes not people that create a mockery of their own tribe. San Pasqual Tribal members will never enroll anyone. They'd rather sell off the casino and get 5 million a piece. Close the Rez.

Anonymous said...

It was ok at one point for this nation to own people. It was until the next generation changed it. Matter of fact is was in the constitution. BIA won't deal with people only tribes? That is what is going change. Sit back and watch. This will be a case law. Never ever did the BIA ever think their digitized records would ever be connected and a paper trail from 1800 on. In the past BIA only dealt with exposure of high-school mind. Never with degrees and logic and it will change. Why? Because we are going change. Keep doubting us because I'm sure the people who once owned slaves thought that too.

O Pechanga said...

There is a BUTTON at the bottom of the post that allows you to SHARE on TWITTER, you can share to: @USIndianAffairs @Interior @NatResources @IndianCommittee additionally, @SenJohnBarrasso.

Share it also on FACEBOOK and TAG the above parties...

GET ACTIVE...

Anonymous said...

The problem with the BIA people is that they just want to sit back on their big asses and collect their pay checks without doing their jobs, and then retire and collect a retirement check for the rest of their lifes. They don't give a shit about what is right or wrong. As long as they can say that they retired from the US Government. People say that 2% of the BIA employees have hemroaids and the other 98% are perfect assholes.

Anonymous said...

Amy looks like Robert Smiths twin.

Anonymous said...

The problem with the lazy-assed aggrieved is that they want someone else to do the heavy lifting, and then reap any benefits that may come.

They don't want to do the work it takes, scouring archives, making a visit to a congressperson, write a letter, email a letter. I bet only 2% of most disenrolled families are doing the work the others won't do.

And 90% of those not doing jack shit are doing the whining.....

Anonymous said...

Does anyone think it's odd that the Facebook page Reztalk is so very adiment about trying to prove that the entire tribe doesn't belong ,besides their family,however has yet to show one document that proves their argument? Reztalk is probably the most horrible journalism I've ever seen, and sad to say Original Pechanga supports them.

Reinstatement_Restitution said...

Amy Dutschke cannot be recused; she must recuse herself, or a complaint must be filed with the BIA Inspector General regarding the conflict of interest. These BIA policies are difficult to navigate, but must be learned, understood, and used to compel BIA employees to do their jobs. Managing the decision making process is essential. Narrow the scope of the review to only the pertinent matter, and cite the law, federal regulation, BIA policy, or court decision that applies. This makes the employee's job easier while making it difficult for the decision maker to claim that a wrong or incorrect decision is reasonable.

In this case it is not reasonable to state that all pertinent evidence was reviewed when the subjects of the decision were not allowed to submit evidence. Unfortunately the BIA deliberately takes years and years to issue decisions, or alternatively just waits for the statute of limitations to expire and then there is nothing that can be done about it.

If you read the letter and see what policy is being applied you will see it addresses a blood degree correction. That is not exactly the same as deferring a decision on enrollment. The Regional Director will be able to claim that these are two different issues, and that she is acting reasonably to address the enrollment issue as requested by the appellants. Good luck on trying to get any BIA employee to ever admit they made an error. It's not going to happen.

Anonymous said...

Hey, Lawson, Toler, Herrera . . . . . . you will see the documents when they are released. There is a reason they haven't been, yet. Just wait!!!

Anonymous said...

what is this appeal?

http://www.oha.doi.gov/IBIA/Ibiadecisions/42ibia/42ibia130.pdf

looks like it was dismissed.

Anonymous said...

Speaking of squatters...


https://books.google.com/books?id=XVlBAQAAMAAJ&pg=PA200&dq=san+pasqual+commissioner+report+jose+juan&hl=en&sa=X&ved=0CFgQ6AEwCGoVChMI_YmAwtOFxgIVxKyACh0HVACz#v=onepage&q=san%20pasqual%20commissioner%20report%20jose%20juan&f=false

Anonymous said...

Regarding the appeal, when Alan Lawson stripped the legitimate enrollment committee of it's power and put in place the illegal enrollment committee by a paid for vote, the Indian Board of Appeals ruled that the chairman of the legitimate enrollment committee did not have standing to appeal the adverse ruling by the Bureau. Because the descendants did not have their due process notice, they had no standing to appeal, either. That is the 48.9 notice they are trying to get today. As to squatters, that article is old news. Yes, Rosewell Trask was a squatter then and his son, Frank Trask became a squatter, although he was to keep squatters off of the land, and today, their descendants are still squatters.

Anonymous said...

? for Amy Duschbag. What or who gives you the right to play with peoples lives the way that you do? you were hired to do a job and to make sure that things were run according to policy, and to be honest with all. Instead, you have chosen to be lazy and only cater to the corrupt tribal leaders that wish to dis-enroll true native American people. In stead of retiring from the us government, you should be FIRED and held accountable for your actions. You have hurt so many true native American People , and you sit back on your big fat ass, not caring one bit that it was you that is causing a big problem within Indian Country.

Anonymous said...

Who did she disenroll?

Anonymous said...

It is what she did and did not do that contributed to hundreds of disenrollments and to keeping them current. She failed to send all documents to the DOI when they asked for all information, some of these documents made her look guilty on how she handled the issue. She waited to send official rulings until after the executive committees had already made a decision. She also helped to let them know exactly what she could do and could not do and the loopholes around the system. She also alerted certain tribal leaders of any information that came her way regarding counter moves made by disenrolless or ones that were being planned, because the Regional Director is suppose to receive copies of everything.

Anonymous said...

Is there a motive or just incompetence?

Anonymous said...

Her motive is to allow tribes to determine their own enrollment or to NOT allow tribes to determine their own enrollment? I dont get it. My assumption is that there is a lack of law within ICRA for her to follow any type of protocol. Santa Clara v Martinez always wins.

Anonymous said...

The San Pasqual are a tribe that demonstrate that Martinez case does NOT apply. If you read 25 CFR 48, which has been in place since 1960, and remains in place today, the BUREAU has the final say over enrollment and they have screwed it up so badly. It is not just the Trask descendants that Frances Muncy enrolled, wrongfully, but the Alto's (sorry no San Pasqual blood), but there are a few others, too. Was it motive or incompetence? Hard to say. Maybe a little of both. At any rate. Amy Dutschke failed to give the true San Pasqual their due process rights and they are entitled to have it TODAY!

Anonymous said...

if u idiots were true san Pasqual u would be in the tribe.i guess u don't have the blood.so quit bashing everbody else have a good day.

Anonymous said...

Idiots, huh? You must be a Lawson, Toler, Herera? Maybe an Alto? None of you have ANY San Pasqual blood and don't belong on the San Pasqual land.

White Buffalo said...

I would never tell another tribe that I know what's going on internally, so let me be clear there was a time when "Santa Clara Pueblo v. Martinez" was instrumental in strengthening tribal governments. We have been beat over the head by the tribes with this section of the ruling and law;

"1. Suits against the tribe under the ICRA are barred by the tribe's sovereign immunity from suit, since nothing on the face of the ICRA purports to subject tribes to the jurisdiction of federal courts in civil actions for declaratory or injunctive relief. Pp. 58-59. - See more at: http://caselaw.findlaw.com/us-supreme-court/436/49.html#sthash.oNLzB3xp.dpuf"

There are others who can explain it more fully than I, but non tribal citizens can not sue a tribal member if the member is acting in their official capacity.

Last I was told "Santa Clara Pueblo v. Martinez" supersedes "25 CFR 48,".

Anonymous said...

Hi White Buffalo - you would be absolutely correct if we were all other tribes. Our constitution and bi-laws first ever establishing our tribe has the 25 CFR 48 written in it. It's not an ordinance it's not a article or even please refer. It's in our constitution. Ok now that you are educated on this and our 48 gives full power to the BIA as you can see in the Alto case why they are disenrolled. Your example would be correct if membership was established by our tribe. It's not it's through the BIA and they didn't follow our rules set by our tribe when it was first found and made. Got it?

BlueDove said...

Altos are not disenrolled per Case# 11cv2276.

Anonymous said...

It's ok BlueDove what your clients or you are going through no one can imagine. But the fact is our people took you on when they didn't have to. She accepted him as her own never ever did Maria Alto ever think her adopted great great and great would sit in positions and take and not accept their people. I will tell you this you have broke her heart and the only way to fix it is to accept what blood does not run through your heart. I wish you the best but you need to read Harrington papers where his own mother Maria is interviewed stating he was adopted. Good luck

Anonymous said...

Wow. I wish you would check out the INAJA Reservation documents . That is where Miguel Wypoke, the mother of Guadalupe Wypoke, who is the mother of Modesta Contreras is from. In all the efforts to change the Martinez San Pasqual Blood, you probably will. To less blood. Good Luck.

Anonymous said...

Oh how cute. A document. Waipokes are from Inaja, San pasqual, and El capitan. Tsk Tsk. We don't know what you are feeling and never will. They married Duro Matawir and Kwamii Alto. You would know this. Can you imagine if Maria didn't take Marcus in. You wouldn't be feeling the way you are. Can you imagine when you were in council if you accepted everyone like Maria did Marcus? I guess timelines have a way of taking care of it. You had your chance to prove your heart and failed. We now are home and taking it all back.

Anonymous said...

That's the reason the elders of the Martinez family have done nothing. The Lineals of this family could actually give the family less blood. If your own elders haven't done anything , why would the BIA? Good Luck

White Buffalo said...

Hmm the BIA, the DOI, and congress are only motivated those who have more power than them, those who have more money than them, and those who have more influence than them. That is a tall hill to clime alone. The change we need is systemic when it comes to Indian law. I believe in the right of sovereignty, I also believe in real checks and balances. Also most important is the right to question the authority of an agency like the BIA and DOI especially when it appears to be an impasse. Thanks for the information June 11, 2015 at 7:30 PM

White Buffalo said...

Hmm the BIA, the DOI, and congress are only motivated those who have more power than them, those who have more money than them, and those who have more influence than them. That is a tall hill to clime alone. The change we need is systemic when it comes to Indian law. I believe in the right of sovereignty, I also believe in real checks and balances. Also most important is the right to question the authority of an agency like the BIA and DOI especially when it appears to be an impasse. Thanks for the information June 11, 2015 at 7:30 PM

Reinstatement_Restitution said...

The BIA has an internal policy manual. Their policy is to give deference to tribal leaders.In this instance deference is equivalent to favoritism. The fiduciary obligation of the BIA is to enrolled members of federally recognized tribes. If you ever wondered why the BIA sides with corrupt tribal leaders instead of illegitimately disenrolled that is the answer.

Anonymous said...

Internal Policies do not over ride constitutions. That's why San Pasqual is so unique we are not 99 percent of the tribes. Our bilaws are clear. Follow 48 and they didn't. The reason they side with tribes and corrupt leaders is because THOSE tribes don't have their BIA determining membership like San Pasqual. Watch it's going to be great because they will be held accountable. It's a new world all documents signed and sent have been digitized. It's the wiki BIA leaks!

Kimberley Alcantra said...

My family and I are with Coyote Valley and got dis-enrolled illegally. My brother has been trying to meet with AMY DUTSCHKE for over three years and she won't meet with us. TROY BURDICK superintendent has been foiling out tribal remedies. Amy even lied to my congressman. For the past couple months he has been talking with MIKE SMITH the deputy BIA director and he agrees with me but STILL no meeting. WE NEED OUR STORY OUT THERE. My brother has them cold! Be share or comment to help. Thank you.

Reinstatement_Restitution said...

My point is that the BIA has no requirement to serve disenrollees. Their policy and federal regulations are clear. The BIA has a fiduciary trust obligation to enrolled members of federally recognized tribes. If you aren't an enrolled member, you aren't an Indian according to the regulations and policies.

The matter of deference to tribal leaders has a direct impact on the way tribal law is interpreted. I am not defending the BIA in any way shape or form, but their policy tells employees that they must be guided by the way tribal leaders interpret their own laws. They do not have the discretion to interpret tribal law themselves and that comes from several federal court decisions.

So even if the governing document incorporates 25 CFR Part 48, the tribal leaders may be able to provide an interpretation to which the BIA will give deference even if it appears to be in direct contradiction to the regulation. This happened with the Pala disenrollments where the Enrollment Ordinance says that it is not the intent of the Executive Committee to affect the status of those already enrolled, but the tribal leaders said the Enrollment Ordinance gives them the power to disenroll. The BIA then jumped through hoops to find a precedent in an Hawaiian case where the court ruled that an introduction to a law is prefatory and not part of the law itself.

Talk about doing whatever it takes to support disenrollments, but that is what you have to expect from the BIA.

White Buffalo said...

I expect that my tax dollars are not well spent. Those fence sitters wait for the leadership to give direction, and guess what there is no e forthcoming. Time and time again the justification is I am not authorized to make a decision that supersedes the authority of congress. We all know how congress republican and democrat alike are not interested in a bunch of people who have no power, influence, or money. What they and the tribes bank on is our fragmentation as a group. The fragmentation comes from the diversity of tribal nations, and the circumstances of the disenrollment of the person and family.

Reinstatement_Restitution said...

Too true White Buffalo. The current state of federal law and regulations has not kept pace with the savvy of tribal lawyers. These unethical and corrupt attorneys counsel tribes on methods and strategies to harm their own people, then defend the tribes in court when disenfranchised members seek recourse and remedy for the harm that has been inflicted upon them.

Most of those who have been disenrolled are completely innocent of any violation of tribal law. The tribes act against their members without just cause, and often with the most dubious kind of reasoning. If only the tribes could see beyond the dollar signs and the petty motives of revenge for things that happened decades ago. If tribes refuse to make decisions that serve the welfare of the people they ate doomed to fail.

Anonymous said...

Tomorrow we get our decision!!! San Pasqual Descendants!! It's gonna be awesome!!!!

Anonymous said...

Great discussion. Here is where the BIA messed up. They never thought anyone would ever link all their decisions they ever made and digitize them. Never ever did they realize their own documents would be digitized. Never ever did their documents be organized to show what conversations took place for 100 years. All it shows they were subjective. It will show how Amy was subjective and it's all based on interpretation. You need to realize the laws are in place to protect. We the people make the laws they enforce and will change how they interact with us. I am sure everything everyone has shared was the exact items when people in America owned people. Oh the government can't do that, oh its our bilaws, our constitution, and guest what the people changed it. What it comes down to is they don't want to give up their 100k. If everyone tribe accepted their own this would never happen ever. Some true leaders.

Anonymous said...

Reinstatement and White Buffalo, you seem to understand and analyze many factors to every equation. Here's one for you, the family from San Pasqual who are trying to enroll themselves through an enrollment ordinance are currently looking to disenroll every other family on the San Pasqual Reservation. This family continues to threaten the Tribe as well as every Tribal Member who is not in their family. Their cry for Justice has a hidden agenda. The Leaders of this family have gigantic egos and will threaten if they don't get their way. They have done it before. San Juan Capistrano, the Juaneno's. The Belardes family was a faction at San Juan Capistrano and because of their arrogance and selfishness the Band lost ALL federal recognition. While this may not seem the objective at San Pasqual the probability of having the same outcome is very real. Be careful what you support. Could be the beginning of the end of us. AHO!

Anonymous said...

It will be the end of everyone. I promise. Remember you broke her heart.

Reinstatement_Restitution said...

Federal law and regulations govern the decision making process. A faction that seeks to harm all will have a problem finding a law or regulation that will allow such an action. I can think of only one way this group will succed, and that is by amending the governing document to state membership eligibility requirements that exclude the very people who would be voting. This is not a very likely outcome.

The big problem is that the tribes that disenroll become intractable and refuse to negotiate or compromise in order to resolve these disputes. That approach causes those who are harmed to react with equal enmity. How can there be one people when such attitudes prevail?

Outside agencies see this antagonism and wish to wash their hands of the matter quickly. No decision can fix these messes, but at least by refusing to interfere the outsiders keep free of the entanglement.

So what is the solution? In San Pasqual the solution is to follow tribal law and to fairly and equally apply the same standards to all. Why is this so difficult to achieve? And why would anyone support tribal leaders who are unwilling to uphold tribal law? Answer these questions and the problem can be resolved.

Anonymous said...

I agree Reinstatement. Follow Tribal law fairly and equally. Standards should apply to All members. Blood degree is the root of all evil. The Haves and the Have nots.

White Buffalo said...

I do not support any one side in this argument. I do not support tribal governments who use sovereignty to pick and choose who should be in or out in an unfair way. If you are a descendent of the people who lived on the land then you are from that land and should be a member. I do not know the story of this people well enough to say who is who. I have said this. I and my family have been treated wrongly by the people of Pechanga. In fact we have family in the tribe still who helped to get us disenrolled, so I am well aware of what it feels like to be told that I now no longer have an identity to pass on to future generations. As for analyzing stuff I gut think about what I read if my conclusions are not right then it is most likely because all of the facts are not present or there are errors in the facts.

Anonymous said...

dear white buffalo sorry about ure family being they way there are I always thought family sticks together no matter what.guess money more important than family.sad

King of the Queen said...

BLOOD OF THE BAND. CFR 48. "If you do not have the BLOOD. Then Your a fraud and you don't belong. The Creator will put everyone in there place. even the Thief's will have there day. In a lake of fire, for living lies.. 'Ponds of piss f there buried among Royalty.