Saturday, May 2, 2009

The Individual Indian Scores a VICTORY under Civil Rights Act: Another Crack in the Sovereignty Dam

Crack in the Sovereignty DAM! One of MANY to come. Congratulations to the BANISHED Snoqualmie.

In a legal first, tribal members have been victorious in Federal court challenging a tribal banishment action.

On April 30, 2009, the U.S. District Court for the Western District of Washington granted the Petition for a Writ of Habeas Corpus filed by nine Snoqualmie Tribal members challenging a banishment imposed by the government of the Snoqualmie Tribe in May last year The Court held that the Tribe's government violated the Petitioners' due process rights under the Indian Civil Rights Act and vacated the full banishment. As a result, the Petitioners' membership in the Tribe, as well as their benefits, are restored. The Court also imposed a time restriction on a pre-existing social banishment that prevented the Petitioners from coming onto tribal land and attending tribal events. The Court reduced the open-ended social banishment to 90 days, further vindicating and protecting the tribal members' Indian civil rights.

The decision comes after the first trial held in Federal court under the 1968 Indian Civil Rights Act seeking relief from a tribal banishment action. This is the first Federal court decision to overturn a banishment after trial upon a finding of a denial of due process. Tribal banishments and disenrollments have been increasing in frequency in recent years. The decision could have profound effects on the way tribal governments treat their tribal members, hopefully leading to greater respect for Indian civil rights.

Rob Roy Smith and Steven Kennedy of Ater Wynne represented the tribal members, all of whom were one-time elected members of the Snoqualmie Tribe's government.

Rob Roy Smith
Ater Wynne LLP
Suite 1501, 601 Union Street
Seattle, WA 98101-3981
(206) 623-4711
(206) 467-8406 (fax)


Allen L. Lee said...

This is HUGE!!!
Up until now the tribes have been left to enforce the Indian Civil Rights Act typically contingent on a tribes ability to establish courts. This sets precedent that federal courts can enforce the Indian Civil Rights Act regarding internal tribal matters. The Indian Civil Rights Act is valid law in federal courts as well as tribal ones, as all congressional acts should be.
Santa Clara v Martinez? Lets see where it goes.
Good job, Snoqualmie.

t'eetilawuncha! said...

Thanks to our family at OP blog for posting this story. Very good news, and yes it can help all indians who have had their rigts violated by corrupt governments.

Anonymous said...

So what are we waiting for??????

'aamokat said...

I am expecting some tribes to fight this ruling tooth and nail when it is their fault their sovereignty could be eroded by them not following their own laws and tribal constitutions.

If these tribes would just abide by the rule of law instead of doing whatever they want without fear of the consequences, then the federal courts would not have to rule on this case and others that are sure to follow.

At Pechanga, by allowing the same people to file the disenrollment charges against us and/or to allow them or their family members be the same people who submitted the so called evidence to rule on and be the deciding votes on the enrollment committee in kicking us out of the tribe, Pechanga officials violated not only the Indian Civil Rights Act but the Pechanga constitution as well.

By allowing some families to be cleared from disenrollment who have the same kind of information in their family histories that was used as reasons to disenroll other famlies also shows the lack of due process afforded us, the disenrollees.

I will again state Article V of the Temecula Band of Luiseno Mission Indians, sometimes referred to as the Pechanga Band of Mission Indians' constitution:


To our resident tribal hack who comes here and says that due process was afforded us and that the facts were not on our side, how was due process afforded us?

You can repeat this line over and over again but if you truly know the facts, then deep down you know that due process was nowhere close to being followed in our disenrollments.


Mr. Lee, you are right, this ruling is huge and it is probably just the tip of the iceberg!

Anonymous said...

Great to see ANY sign of progress!!

Anonymous said...

Do you think this firm would consider taking on our fight with Pechanga?

'aamokat said...

So do you think people like Mark Macarro are going to continue to parrot the line, "the courts have upheld the right of tribes to determine their own membership in their own forum?"

That is all they have to fall back on.

Yes tribes do have a right to determine their own membership but if they aren't fair and impartial in their own forums, and if they don't even follow their own laws and procedures and violate the rights of their own citizens, the Snoqualmie case will show that the federal courts will step in and make sure the individuals' rights are upheld.

Well Mr. Macarro if you consider the courts stepping are eroding tribal sovereignty, then you and and tribal leaders like you are to blame for this.

With the Snoqualmie case and the BIA upholding the tribal membership of people from the San Pasqual tribe who were disenrolled being just the start of things to come, we are going to see more and more that in the vast majority of disenrollments and banishments that the merits of the cases are on the disenrolled and the banished sides.

Erick Rhoan said...

I'm dying to know who the names of the parties are in this case. I've been hunting for this case on WestLaw and can't seem to find it. I even did a look-up on the attorney trying the case and it doesn't have the case listed on his profile. Also went to Western District of Washington courthouse's web page and there is no place for opinions to be read! This would be an awesome case to read if I could just find it.

OPechanga said...

I have it on a PDF FILE....

Anonymous said...

so how is this a win? after all this stupid petty law-suit do any of these people actually think the membership will let them back in?
the "win here" is that the white judge did not think the banished were given "due process" (a term that is vaguely defined.)
this does not change any of the facts the caused these people to be banished in the first place. so, um congratulations for nothing!

Allen L. Lee said...

It occurred to me that the ICRA should hould the same legal weightas a congressional Act as the 1866 Treaties.

To anonymous who asked "how is this a win'. this isn't the first time that a federal court has entertained this "Poodry v Tonawanda Band argued ICRA violations as a form of detention.
It's a win because a federal court has considered a federal law regarding Indian rights in an Indian nation. The tribes can absolutely refuse to adhere to any federal decision but that would put the ball in the federal court or BIA hands to determine the national interest of Indian Civil Rights in tribes.

Anonymous said...

Parties to the case are:

BILL T SWEET, et al.,

'aamokat said...

What Anonymous of May 4, 2009, 1:45PM fails to recoginize is that at any moment he or she could fall out of favor with this or that faction in his or her tribe and that his or her family at any time could be suddenly on the outside looking in.

That unless the rule of law and due process is enforced on Indian reservations no one is safe including those arrogant people who think it could never happen to them.

I bet he or she would be singing a different tune if all of sudden he or she was disenrolled or banished without a fair trial.

Without due process none of things some people consider to be true about certain people not being legitimate tribal members has been proven.

But if certain tribes are not going to make sure that all of their tribal members' rights are upheld, then the Feds can do it for them.

Tribes, the way to avoid federal intervention is to do the right thing in the first place it is still not too late for you to do so.

Allen L. Lee said...

I almost forget why I made the reference comparing the equal weight between the ICRA and the 1866 Treaties. Anyhow a poster over on John's Place contributed this link showing the some Congressional members are back to the business of the Freedmen Descendants rights.
In my mind there are other aspects of the Indian Civil Rights Act violated by the dis-enrollments than just due process, but if federal courts can't decide on the ICRA, then they might as well let tribal citizens out of federal detention and stop hearing anymore cases regarding anything involving tribal citizens and congressional acts.
Here's the link:
To anonymous re due process.
Due process is not vague. it is a general principle which requires a government to rpovide fair notice of its laws and a fair opportunity for an individual to defend themselves against accusations by governments. I know you don't like my quotes but this is important as due process with the Indian Civil Rights Act would address tyhe rights of the individual Indian as they relate to tribal law as a government. Here's the excerpt for today:
"...Whether process is due
The cases just mentioned established one important distinction: the Constitution does not require “due process” for establishing laws; the provision applies when the state acts against individuals “in each case upon individual grounds” — when some characteristic unique to the citizen is involved. Of course there may be a lot of citizens affected; the issue is whether assessing the effect depends “in each case upon individual grounds.” Thus, the due process clause doesn't govern how Ohio sets the rules for student discipline in its high schools; but it does govern how Ohio applies those rules to individual students who are thought to have violated them — even if in some cases (say, cheating on a state-wide examination) a large number of students were allegedly involved. ..."

Anonymous said...

Another article about Judge Robart's ruling in the Snoqualmie banishment case;

Allen L. Lee said...

Thanks Anonymous for providing an article that co-oberates my statement about "Due Process"

"...The judge ruled that the banished members did not receive adequate notice and a chance to defend their rights...."

I said:
"...Due process is not vague. it is a general principle which requires a government to rpovide(provide) fair notice of its laws and a fair opportunity for an individual to defend themselves against accusations by governments.

Allen L. Lee said...

The most flagrant due process violation I see in the Pechanga dis-enrollments is the fact that the tribe led the defendants to believe that their case could be defended with documents and literature, when the documents were presented, the outcome was actually decided using recognition based on oral tradition. Due process doesn't have to mean the Native Nation government has to be modeled after a Euro-American one, due process is a general principle that can be applied to many diverse forms of government with the guiding principle being fairness.
After reading your case:

...To the extent that Congress has not chosen to provide an effective external means of enforcement for the rights of tribal members, the omission is for Congress to reconsider if and when it chooses.

...The cause of action under the Indian Civil Rights Act is also unsustainable in California courts. As Martinez explains, Congress chose not to create a federal remedy for tribal violations of the act..."

I paste this for the reader to understand that Congress can, and only Congress can formulate remedies for ICRA violations. The federal courts can not enforce remedies that have not been made law by Congress. It is a new era in Indian country with the dis-enrollments and now is the time for remedies by Congress to be considered. Perhaps some can understand why certain dis-enrollers have shouted so loudly about letting the courts decide. It is because they know Congress has left the remedy of fairness up to the tribe with no accountabity. They know there is no remedy for the courts to decide on that will benefit the dis-enrolled, yet. This is why the attention of Barney Frank, the CBC, Sen. Coburn and other is so important.
Federal jurisdiction can put tribal members in federal prison for committing crimes against other tribal members, but they can defend the basic human rights of a tribal member to remain a citizen of their Nation? Something is wrong with that picture.

Allen L. Lee said...

Edit correction,

"but they can defend the basic human rights of a tribal member"

is suppose to read:

but the "can't" defend...
Allen L. Lee