Friday, August 19, 2016

9th Circuit AFFIRMS Protection of BIA's Injustice, Will NOT Rehear Aguayo !50 Native Americans HARMED:

Sad news for Native Americans that look to the courts for justice against corrupt tribes.

DENIED
The Ninth Circuit said on Tuesday it would not reconsider its ruling affirming a Bureau of Indian Affairs decision that allowed ex-members of the Pala Band of Mission Indians to be removed from the tribe’s rolls.

From the FILINGS for rehearing En Banc


The three judge panel erroneously applied a statute of limitations that didn't exist in this matter.

..Similarly, in petitioners’ case, the documents submitted in support ofpetitioners’ request for judicial notice support former Chairman King Freeman andformer Bureau employee Elsie Lucero’s sworn statements that the Band had notlegally adopted or ratified the 1997 Constitution by a majority of adult votingtribal members


THE PANEL FAILED TO ADDRESS MATERIAL  EVIDENCE AND ERRED IN AFFIRMING THE ASSISTANT SECRETARY’S DECISION THAT RECOGNIZED THAT THE 1997 CONSTITUTION WAS ADOPTED BY 27 TRIBAL MEMBERS AS THE BAND’S GOVERNING DOCUMENT:

The panel accepted the Department’s supplemental excerpts of record as evidence to support their finding that petitioners were on notice.  However, the panel denied judicial notice of petitioners’ compelling evidence that the Band had not been operating under the submitted Constitution, but was still governed by its Articles of Association.


THE PANEL FAILED TO ADDRESS LEGAL ARGUMENTRAISED IN PETITIONERS’ OPENING BRIEF ABOUT THEDEPARTMENTS’ COMMON LAW TRUST DUTY UNDER 25 U.S.C. § 2.

...the panel erred when it found that “Bureaureview and approval was not required” because “the Band could have adopted the1997 Constitution notwithstanding agency approval or disapproval.”  [Opn. p. 25]  The panel’s stated reason implicitly overlooks the Department’s trust duty under25 U.S.C. § 2 to ensure that governing documents that are federally recognized bythe Department are passed by the Band as a whole. 

5 comments:

White Buffalo said...

Then by erroneously applying a statue of limitations the court has opened itself to an appeal due to procedural errors. I hope the people involved continue their fight.

Anonymous said...

Thank you White Buffalo, you are correct about the court leaving the door open for an appeal.
And if need be we are ready to go all the way to the US Supreme Court
and get justice for all.

White Buffalo said...

August 18, 2016 at 3:29 PM; you have my support in this fight. These type of action as you know is a long drawn out process that seems like it will never end. Hang in there and if possible stay in close contact with the family and all of the other plaintiffs in the case to give one another support. Family ceremony and gatherings are the best way to stay strong and united.

Reinstatement_Restitution said...

There is new evidence that would support the withdrawal of the current appeal to file a new complaint. The Plaintiffs should seriously consider the option even though it would mean starting back at Federal Court. Going to the Supreme Court after denial of an En Banc hearing is a very iffy proposition.

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