DENIEDThe 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.