Friday, July 31, 2015

Native American Civil Rights: Are Tribes WITHOUT Independent Courts CAPABLE of Unbiased Tribunals?



In the recent post from our friend Paul Johnson, Are Native Are Native Americans Entitled to Civil Rights...? , his first requirement of due  process was an UNBIASED TRIBUNAL.  Such unbiased tribunals do not apply to countless tribes, including Pala, Redding Rancheria and Pechanga to name but a few.

In Pechanga's disenrollment against the Manuela Miranda descendants (Salinas v. LeMere, 7/23/04) Judge Fields ruled that:

"The Defendant band...appears to be almost totally inadequate to the task.  To refer issues to a tribal council, all of whom have a personal stake in the outcome, few if any of whom have legal training and where the council is under no compunction to follow established due process rights, appears to fall into the category of "lack of adequate forum".


Judge Fields came to this conclusion after studying the briefs from BOTH sides for over three months.  
The appeals court overturned based solely on THREE words "TRIBAL SOVEREIGN IMMUNITY" and not on the merits.  Yet tribes try claim that cases HAVE been decided on the merits.

16 comments:

White Buffalo said...

The message has not changed as my post will reveal. If Pechanga did nothing wrong then why hid behind sovereignty? It is that simple. Marcy said it was in internal matter. It was, it was the tribes knowing that it was breaking bylaw and constitutional statue of the tribe. It was liars presenting evidence, and most important members who would not recuse themselves because of the conflict of interest. Our accusers sat in judgment. They were asked to recuse themselves but they ignored the request. Judge Fields was correct. We fought the tribe to the Supreme Court. The court did not want to legislate from the bench, they said it was the legislators responsibility to address these issues. Passing the buck. Ultimately we spent thousands of dollars to be told sorry its your tuff luck. Some of us are still working on a legislative remedy, but it is a slow process just to get access when you have no real influence of money to buy the influence. Actually in every record of determination from the appellate courts the courts were sympathetic to our circumstance, but ehy as the lower courts hands are tied be cause of Santa Clara.

O Pechanga said...

It seems that Santa Clara doesn't apply to FEDERALLY recognized native americans...

Anonymous said...

Santa Clara was applicants not tribal members.

Reinstatement_Restitution said...

That is an argument that has not been decided. The Courts have expanded the interpretation of the Santa Clara Pueblos v. Martinez decision and twisted it to apply to disenrollment. It was used against us in Allen v. Smith as the Court ruled that Pala EC was acting in its official capacity when they disenrolled members, and were entitled to the protection of sovereign immunity as the Band was exercising the right to determine its membership.

This argument is a more explicit assertion on the limits of the decision. I have no idea how the court will view this limitation.

Anonymous said...

Soverignty immunity does not stem from Santa Clara Pueblo v. Martinez. Santa Clara Pueblo v. Martinez affirms a tribes inherent right to determine membership/citizenship based on tribal ideologies, not US federal laws. For instance, the applicant for enrollment was denied due to the tribes patrilineal descent requirement, that the mother Martinez had a child with a non-Indian, and Martinez filed suit on thd basis of Civil Rights violation due to gender discrimination. The courts opinion and ruiling, the Supreme Court of the United States I might add, confirmed/affirmed the rights of tribes to determine their own citizenship based on trib as l law and ideology/cultural/traditional belief system or tribal law, and gg as t the tribe was not beholden to federal law when determining it's own citizenship. The court utilized the argument/recognized tribal soverignty as the foundational imputus, if you will, that allows tribes the inherent right to do so, along with the entitlement that that soverignty status holds, exemption from suit. It is an internal matter, it was argued, due to the inherent power of the tribe to d er termini it's own future, and therefore how it's citizenship will be shaped. Civil Rights only extend within Indian Country when you are detained or arrested and not given proper due process or equal protection. The current argument that tribal law should not govern or regulate an applicant who is not already a member because the process of determining in that I he rent right if eligible is not going to hold water. That's like saying if I buy a new car, the rules and regulations determine car sales don't apply unless I actual buy the car. Although an eligible non-member seeking enrollment is an American, the laws that regulate and determine membership into a tribe are tribal law, and should remain within the scope and interpretation of tribes, not Congress, and definitely not non-Indian courts.

Anonymous said...

https://m.facebook.com/emilioleprado0
A name to a face. :)

MikeB said...

ANON 3:37 DEFINITELY A LAWYER. WHY DO YOU HIDE BEHIND ANONYMOUS WITH ALL THIS INFORMATION? JUST WONDERING?

Anonymous said...

Talton v. Mayes (1896). This decision forced Congress to respond and created the Indian Civil Rights Act of 1968, in other words ICRA was a response to Talton v. Mayes.

Anonymous said...

Mike B., if I was a lawyer, I would not be wasting my time writing on blogs, I would be writing solutions and/or invoking questions of law in Law Review articles and scholarly journsls...lol. I am not hiding, just commenting. Getting around Santa Clara Pueblo v. Martinez is essential in order to establish federal review of ICRA violations, or creating internal tribal forums. Just thought understanding that particular case forward, backward, and upside down was important. I guess next time I should ask your permission.

MikeB said...

Either way, thank you for your dialogue. I think it helps tremendously. Youre right about ICRA. Keep it up! You have my permission.

Reinstatement_Restitution said...

To a certain extent you are correct, but you do have to read the decision carefully. The plaintiffs claimed that ICRA guaranteed them equal protection. The court ruled that the ICRA has no provision for enforcement due to the explicit intentions of Congress. Enforcement of the ICRA would require infringement on the sovereignty of tribes. Other court rulings have expanded the limits of sovereign immunity due to interpretation of the Santa Clara Pueblos v. Martinez decision.

So though sovereign immunity does not flow from the decision, the decision has been interpreted to protect tribal officers acting in their official capacity in the determination ofv enrollment.

Anonymous said...

Anonymous 3:59 - What does that facebook have to do with anything on here? Don't have anything to say? Go check if the chicken is still giving you eggs.

White Buffalo said...

You do know the tribes have misused Santa Clara in the form of protection of tribal officers, specifically a non tribal member can not bring suit against a tribal official who is acting in the official capacity of duties as specified by the tribal constitution and bylaws. We have evidence that the tribal officials have acted in a manner inconsistent with the tribal constitution, but like I said in my first post we were beaten with the Santa Clara president.

Anonymous said...

Reinstatement_Restitution

Santa Clara Pueblo v. Martinez is an important and pivotal case for a lot of specific reasons. At the heart of the case, and the question that the Supreme Court decided to answer, was whether a federal court can "pass on the validity of an Indian tribe's ordinance denying membership " with the threshold being an interpretation of the Indian Civil Rights Act, specifically Title I, which states the following, "no Indian tribe in exercising powers of self-government shall deny to any person within its jurisdiction the equal protection of its laws." The court was answering a disagreement between the District Court that ruled Title I of ICRA "impliedly authorized civil actions for declaratory and injunctive relief, and that the tribe was not immune from such suit," but they ruled in favor of the tribe due to the idea that a tribes membership criteria is a vehicle through which the tribe self-identified and is an essential function towards the tribes survival as a "cultural and economic entity." The Appeals for the Tenth Circuit upheld the District Courts determination concerning jurisdiction, but disagreed concerning the emrits. The 10th Circuit argued that the 14th Amendment was not controlling in the interpretation of this statue,but concluded that discrimination based on sex was unjust and could only be sustained if the tribe had a compelling tribal interest ( health and welfare of the community, treaty rights, etc.), which the 10th Circuit argued the tribe did not. What is interesting is that both courts agreed that the subject matter involved warranted jurisdiction in a federal court, that ICRA violations were indeed a grounds to be heard in federal court, but what they disagreed upon is whether that particular viator by the tribe was allowable due to a compelling g tribal interest. The Supreme Court stepped in and decided to reverse the 10th Circuits decision. Up until this particular case tribes were being sued in federal court, their was not soverignty immunity. The Supreme Court ruled, through an opinion that traced the construction of tribal soverignty and it's applications in other cases, that because ICRA was created by Congress to address the idea that inherent tribal sovereignty pre-dates the US Constitution and therefore the Bill of Rights do not apply in Indian Country, the impliedly intent to allow jurisdiction in the federal courts could not be read from the original ICRA. Santa Clara Pueblo v. Martinez is the US Supreme Courts interpretation of how tribal sovereignty applies to the ICRA as written by Congress, and it is its stamp of federal power over tribes. The opinion clearly states that Plenary Power gives Congress the ultimate authority to intervene in tribal government decisions, but the intent of ICRA was never to intervene in the basic tribal right to define itself through membership which in turn allows a tribe to function as an independent political community. In other words, the Santa Clara Pueblo v. Martinez decision sees tribal membership as a way in which tribes self-determination themselves and is a mechanism through which tribes maintain their cultural, economic, and political identity. Although the Supreme Court recognized that violations of Civil Rights, specifically Title I, do not have any recourse, they believe that tribal matters such as this need to be fixed internally, and that the only way that the federal jurisdiction can apply, is if Congress specifically says in legislation that ICRA violations, beyond habeas corpus relief, can be heard in federal court.

Anonymous said...

I believe that Santa Clara Pueblo v. Martinez recognizes the role of tribal identity within a tribal communities ability to survive cukturally, economically, and politically. If you can convince Congress that disenrollment is destruction of that very mechanism, then maybe the courts can address just how Santa Clara Pueblo would apply. In other words, if the only way Santa Clara Pueblo holds water is through the interpretation of membership equating to a cultural/political identity fundamental to a tribal communities political and economic survival, then link it's destruction to disenrollment and force both Congress and the Supreme Court or federal courts to address that destruction.

Reinstatement_Restitution said...

I was only remarking that the argument that Santa Clara Pueblos v. Martinez does not apply to members of federally recognized tribes has not been decided in federal court. Instead the decision has been expanded to apply to disenrollment as an action of a tribe to determine its own membership. I don't know if this argument will actually be decided in the appeal where it was proffered. The court may choose not to rule on this point and just affirm the dismissal.