Monday, December 20, 2021

Alegre v US CASE ENDS DUE TO Fatal Flaws Summary Judgement for US


The San Pasquale case we have documented, Alegre v is OVER.  SUMMARY JUDGMENT in favor of the United States  Attorney for the plaintiffs Alexandra McIntosh was determined, and spent years on the case, only to lose because there were time limitations and this case was a decade too late.  Sad for the Jose Juan Descendants, and a victory for white interlopers.

Alegre v US has details from last year.

Plaintiffs next contend that if the Court finds they filed their complaint beyond the six-year statute of limitations, that the Court should apply the doctrine of equitable tolling. (Doc. No. 186 at 14.) However, Plaintiffs did not diligently pursue their rights or show that extraordinary circumstances prevented them from doing so. Although Plaintiffs assert “the non-San Pasqual Trask descendants mandate all Tribal Government meetings be closed to all people, except Federally Recognized Tribal members” and “the BIA would not meet with the San Pasqual descendants who are not Federally Recognized Tribal members,” (id. at 15), Plaintiffs have failed to make any showing that attempts were made to pursue their rights. Equitable tolling is therefore not appropriate. See Kwai Fun Wong v. Beebe, 732 F.3d 1030, 1052 (9th Cir. 2013) (the party seeking equitable tolling must establish: “(1) that [it] has been pursuing [its] rights diligently, and (2) that some extraordinary circumstances stood in [its] way.” (internal quotation marks omitted)), aff’d sub nom, United States v. Kwai Fun Wong, 575 U.S. 402 (2015).

Lastly, Plaintiffs’ argument that there is a “continuing violation” fails because the “continuing violations” doctrine “is not applicable in the context of an APA claim for judicial review.” Gros Ventre Tribe v. United States, 344 F. Supp. 2d 1221, 1229 n.3 (D. Mont. 2004), aff’d, 469 F.3d 801 (9th Cir. 2006); see also Preminger v. Sec’y of Veterans Affairs, 517 F.3d 1299, 1307 (Fed. Cir. 2008).

Based on the foregoing, the Court finds Plaintiffs’ APA claims barred by the statute of limitations.


Anonymous said...

It's very sad to see the San Pasqual descendants lose in court for relying on a non-competent white attorney. The focus should have never been in the disenrollment of the Trasks. Rather, on their own enrollment. Truth is, the attorney filed the lawsuit too late. These are the consequences.

OPechanga said...

Indian law is not for any lawyer’s, even though they may have the best interests of their clients. I am glad to support the Jose Juan descendants and have forwarded some information to noted Dine author JF Keeler who is making Pretendians an issue. Seems the Tracks fit that description.

Reinstatement_Restitution said...

These decisions always find technical errors with the arguments, actions, or timing of the disenrolled plaintiffs suits. The court finds in favor of the federal government in order to protect from liability due to failure on the part of federal agencies to fulfill the trust duty obligations.

This decision is directing the plaintiffs to know about things they can't know about because the tribal leadership made determinations without their knowledge. When the disenrollees actually find out what happened it is always after the fact and the defendants can claim that plaintiff's actions are time barred due to statutes of limitations.

Now we know, though it may be too late for most of us. The first argument that plaintiffs in disenrollment cases should make is that there is a statute of limitations on changing federally determined blood degree of ancestors, or on changing BIA approved membership rolls, or on changing federally approved enrollment ordinances after the fact, or on overturning appeals over BIA membership decisions. Long standing membership determinations made by a federal agency have often been overturned by tribal leaders on the basis of Santa Clara Pueblos vs. Martinez which states that tribes have the right to determine their own membership.

Santa Clara Pueblo vs. Martinez did not overturn any longstanding membership determinations. It was about denying applicants based on their from descent matrilineal ancestors. Best advice for any disenrollees attempting to sue in court over decisions to change the past is to be certain to make the court review the statute of limitations on actions to change federally determined membership status. If any Indian is a longstanding member of the tribe (over six years) due to a decision by a federal agency, then any tribe trying to remove them from membership is barred from making changes due to the statute of limitations.

We must all now attack tribal leaders from overturning federal membership decisions based on Santa Clara Pueblo vs. Martinez. There is nothing in that decision that says it is legal to overturn longstanding tribal membership determinations. If those decisions were incorrect then there is a period of six years to challenge them. Once that period has lapsed they are final.

Jordan Johnson said...

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