tag:blogger.com,1999:blog-2887382220113280558.post2934579582750542485..comments2024-03-28T06:01:57.947-04:00Comments on <center>Original Pechanga Blog</center>: OPINION II: Are Disenrollments a Violations of the Indian Civil Rights Act?OPechangahttp://www.blogger.com/profile/10687743661360604165noreply@blogger.comBlogger33125tag:blogger.com,1999:blog-2887382220113280558.post-92020398950521449422012-07-16T15:37:53.113-04:002012-07-16T15:37:53.113-04:00Re: Don's comment. Thank you for taking a look...Re: Don's comment. Thank you for taking a look over my article! I'm glad people are coming across it in research on disenrollment and banishment. <br /><br />I'd just like to correct the statement about Shenandoah not being about disenrollment. That case talked extensively about how disenrollment does not rise to the level of banishment in terms of what constitutes "custody." However, I go on to say in my argument section that the distinction between disenrollment and banishment is often just semantics--the effects, punishment, and hardships suffered because of disenrollment can be just as severe as banishment, if not more so. As you said Don, the clever lawyer would use the term banishment instead of disenrollment when teeing up a case. <br /><br />My argument is essentially that (in part), given the scheme of ICRA and limitations of habeas corpus (the only route for federal court review of tribal ICRA violatiosn), there will not be much relief in federal court for disenrollments. Congress can respond and change the law, but until then, the hands of federal court judges are mostly tied.<br /><br />My article is available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1982796.Mary Swiftnoreply@blogger.comtag:blogger.com,1999:blog-2887382220113280558.post-2671476095242048132012-03-09T03:42:15.829-05:002012-03-09T03:42:15.829-05:00Thank you "Very Much."..."Nice!&quo...Thank you "Very Much."..."Nice!" You have a way of putting these "Grievious Acts," perpetrated by the B.I.A., into "Perpective," with their "Hidden Agenda" for nothing more then $$$ and there "Underlying Quest" to keep the "Corrupt and Criminal Tribal Leaders," of their choosing, in power for their own "Self Interest!" They know, all too well, that the I.C.R.A. has no substance, as it is written, to actually protect the "Native American Indian" from these "Criminal Acts." Way back in the 1960s, when Congress held a series of hearings on the subject of the authority of Tribal Governments. These hearings told about the abuses that many tribal members had endured from the "sometimes corrupt, incompetent, or tyrannical tribal officials." In response to these occurrences, the Indian Civil Rights Act was enacted. To what "END?" It can't be stated as "Sometimes" Corrupt, Incompetent, or Tyrannical Tribal Officials" any longer, for with the advent of "Casino," in the hands of these "Greedy, Corrupt,Criminal, and Money Hungery Tribal Leaders," it is "Commonplace." Illegal Disenrollments and Banishments to "Bolster" their "Quest" for more $$$ at the "Expense" of "Legal Lineal Decendents." And your right, the B.I.A. isn't going to help the "Oppressed Indian" anytime soon....."There's no Money in it." The "I.C.R.A is ineffective, with no "Provision" to take down these "Criminals." The "I.C.R.A. needs to be "Revampt" to include these "Provisions."smokeybearnoreply@blogger.comtag:blogger.com,1999:blog-2887382220113280558.post-248562230843914122012-03-06T18:54:03.002-05:002012-03-06T18:54:03.002-05:00OP could you repost Larry EchoHawks Letter from th...OP could you repost Larry EchoHawks Letter from the San Paqaul court caseAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-2887382220113280558.post-7847313406079816312012-03-06T18:37:31.799-05:002012-03-06T18:37:31.799-05:00From what I read in the law suit the alto's la...From what I read in the law suit the alto's lawyer asked the judge to direct echo hawk to place the per capita in escrow with a third party to hold it,and not to require the alto's to have a bond to secure the (per capita) in escrow. <br /><br />The judge waived the bond fee for the alto's and the judge directed echo hawk to tell the tribe to place the funds in a escrow account.<br /><br />Is the case over ? ARE THEY BACK IN THE TRIBE?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-2887382220113280558.post-31566201375969648952012-03-06T15:39:09.391-05:002012-03-06T15:39:09.391-05:00I might have seen it wrong but wasn’t it EchoHawk ...I might have seen it wrong but wasn’t it EchoHawk who wrote the letter to put the money in escrow after the judge ordered him to place the alto family as full tribal members. Yes the courts don’t say who is a member but for San Pasqual the B.I.A. does. EchoHawk is B.I.A. he was ordered to put them back because of his conduct in the disenrollment of the Alto family.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-2887382220113280558.post-40701688377169695112012-03-06T13:18:09.657-05:002012-03-06T13:18:09.657-05:00Well first I am not a lawyer,...
1.The fact that ...Well first I am not a lawyer,...<br /><br />1.The fact that she placed funds in an escrow account under the Jurisdiction (provisions) under IGRA<br /><br />2. Trust me,without IGRA those funds would not be in there.<br /><br />Now do you feel she did not enforce IGRA?<br /><br />3.I am not trying to be mean but the courts do not decide who is a Indian (the tribes do).<br /><br />4.I believe the Judge would rule against Echo Hawks adiminstrative (screw ups)Forcing him to say he was wrong to the alto family.<br /><br />(if it goes in favor of the alto's)<br /><br />Lets hope so...Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-2887382220113280558.post-71134235756316191042012-03-06T12:41:27.222-05:002012-03-06T12:41:27.222-05:00I’m not a lawyer or law student. If you could poin...I’m not a lawyer or law student. If you could point out how IGRA was enforced if the Alto family was put back as full tribal members and how Echohawk was in compliance with his court order.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-2887382220113280558.post-13340354178960458982012-03-06T12:22:53.254-05:002012-03-06T12:22:53.254-05:00Those are correct and also you have to dig deeper ...Those are correct and also you have to dig deeper under the revenue allocation plan for tribes (those provisions) get down to it.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-2887382220113280558.post-25524617965054993762012-03-06T12:08:11.533-05:002012-03-06T12:08:11.533-05:00Those are all correct and to be quite honest this ...Those are all correct and to be quite honest this is the first time I have seen a lawyer (san pasqual) ever use the APA act to challenge and enfore IGRA and it worked.<br /><br />Well the funds were placed in a account EVEN if they lose (IGRA)was still ENFORCED.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-2887382220113280558.post-40666933112112219932012-03-06T01:12:38.260-05:002012-03-06T01:12:38.260-05:00. Here is the sec pertaining to per capita
Sec. .... Here is the sec pertaining to per capita <br /><br />Sec. 2710. Tribal gaming ordinances of the Indian Gaming Regulatory act<br />(2) The Chairman shall approve any tribal ordinance or resolution concerning the conduct, or regulation of class II gaming on the Indian lands within the tribe's jurisdiction if such ordinance or resolution provides that--<br />(A) except as provided in paragraph (4), the Indian tribe will have the sole proprietary interest and responsibility for the conduct of any gaming activity;<br />(B) net revenues from any tribal gaming are not to be used for purposes other than--<br />(i) to fund tribal government operations or programs;<br />(ii) to provide for the general welfare of the Indian tribe and its members;<br />(iii) to promote tribal economic development;<br />(iv) to donate to charitable organizations; or<br />(v) to help fund operations of local government agencies;<br />(C) annual outside audits of the gaming, which may be encompassed within existing independent tribal audit systems, will be provided by the Indian tribe to the Commission;<br />(D) all contracts for supplies, services, or concessions for a contract amount in excess of $ 25,000 annually (except contracts for professional legal or accounting services) relating to such gaming shall be subject to such independent audits;<br />(E) the construction and maintenance of the gaming facility, and the operation of that gaming is conducted in a manner which adequately protects the environment and the public health and safety; and<br />(F) there is an adequate system which--<br />(i) ensures that background investigations are conducted on the primary management officials and key employees of the gaming enterprise and that oversight of such officials and their management is conducted on an ongoing basis; and<br />(ii) includes--<br />(I) tribal licenses for primary management officials and key employees of the gaming enterprise with prompt notification to the Commission of the issuance of such licenses;<br />(II) a standard whereby any person whose prior activities, criminal record, if any, or reputation, habits and associations pose a threat to the public interest or to the effective regulation of gaming, or create or enhance the dangers of unsuitable, unfair, or illegal practices and methods and activities in the conduct of gaming shall not be eligible for employment; and<br />(III) notification by the Indian tribe to the Commission of the results of such background check before the issuance of any of such licenses.<br />(3) Net revenues from any class II gaming activities conducted or licensed by any Indian tribe may be used to make per capita payments to members of the Indian tribe only if--<br />(A) the Indian tribe has prepared a plan to allocate revenues to uses authorized by paragraph (2)(B);<br />(B) the plan is approved by the Secretary as adequate, particularly with respect to uses described in clause (i) or (iii) of paragraph (2)(B);<br />(C) the interests of minors and other legally incompetent persons who are entitled to receive any of the per capita payments are protected and preserved and the per capita payments are disbursed to the parents or legal guardian of such minors or legal incompetents in such amounts as may be necessary for the health, education, or welfare, of the minor or other legally incompetent person under a plan approved by the Secretary and the governing body of the Indian tribe; and<br />(D) the per capita payments are subject to Federal taxation and tribes notify members of such tax liability when payments are made.<br />By Echohawk denying there tribal rights he his violating his court order and IGRA.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-2887382220113280558.post-57699801858867644522012-03-06T01:12:13.851-05:002012-03-06T01:12:13.851-05:00Larry Echohawk Violated IGRA. He states Sec. 270...Larry Echohawk Violated IGRA. He states Sec. 2701 Findings of IGRA. Sec. 2701 Findings<br />The Congress finds that -<br />(1) numerous Indian tribes have become engaged in or have licensed gaming activities on Indian lands as a means of generating tribal governmental revenue;<br />(2) Federal courts have held that section 81 of this title requires Secretarial review of management contracts dealing with Indian gaming, but does not provide standards for approval of such contracts;<br />(3) existing Federal law does not provide clear standards or regulations for the conduct of gaming on Indian lands;<br />(4) a principal goal of Federal Indian policy is to promote tribal economic development, tribal self-sufficiency, and strong tribal government; and<br />(5) Indian tribes have the exclusive right to regulate gaming activity on Indian lands if the gaming activity is not specifically prohibited by Federal law and is conducted within a State which does not, as a matter of criminal law and public policy, prohibit such gaming activity.<br />Where is the violation.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-2887382220113280558.post-3891105852347942062012-03-05T21:09:40.268-05:002012-03-05T21:09:40.268-05:00Well nothing till just that ruling which placed pe...Well nothing till just that ruling which placed per capita in escrow accounts for who were (disenrolled by echo hawks word)<br />and the judge is reviewing the case under the apa act.<br /><br />this is huge because she said she did not want to violate IGRA,so if one court does it ,the anothers should follow (in theory)<br /><br />But what I am trying to say if your going to enforce IGRA your going to enforce all of it!Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-2887382220113280558.post-1745223165162293962012-03-05T20:57:33.949-05:002012-03-05T20:57:33.949-05:00Don't know, to be honest with you, because I d...Don't know, to be honest with you, because I don't follow case law under the Indian Gaming Regulatory Act. The inner-workings of Indian-State gaming compacts and its politics has always been something above my head. You probably know more about it than I do.<br /><br />Do you know what IGRA allows as remedies for violating it? Is it just money damages, or can injunctive relief be allowed?Erick Rhoanhttp://erickregalado.wordpress.comnoreply@blogger.comtag:blogger.com,1999:blog-2887382220113280558.post-61866084374323121362012-03-05T19:53:22.487-05:002012-03-05T19:53:22.487-05:00That was great Erick,someone who knows there shit....That was great Erick,someone who knows there shit........<br /><br />1.I agree that the disenrolled waited to long to bring suit its been 6 or 10 years for some of them.<br /><br />2.Lets put disenrollment aside and talk about the court upholding IGRA (like Judge gonzalez did in the san pasqual ruling under the APA review provisions).<br /><br />3.Clearly she states peoples rights are violated if they go without per capita and money gets placed in escrow UNDER IGRA.....<br /><br />What do you make of that Eric?<br /><br />4. Might the people in the moratorium challenge Echo hawk under APA review and 290.16 (2) and (4) don't quote me....<br /><br />that the tribe cannot discriminate when passing out per capita or violate someones indian civil rights and ......(4) they must maintain requirements as to who is eligible to receive per capita.<br /><br />That means if enrollment is open every year in january ,they better be enrolling people.<br /><br />Clearly in violation of IGRA and may be reviewed by the court under the APA act.<br /><br />JUST LIKE judge gonzalez did?<br /><br />What do you think eric?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-2887382220113280558.post-45150250650815186172012-03-05T18:10:12.532-05:002012-03-05T18:10:12.532-05:00That's the name of the game, I'm afraid.That's the name of the game, I'm afraid.Erick Rhoanhttp://erickregalado.wordpress.comnoreply@blogger.comtag:blogger.com,1999:blog-2887382220113280558.post-21916963851388429812012-03-05T15:21:19.401-05:002012-03-05T15:21:19.401-05:00O well....just thought I'd throw that out the...O well....just thought I'd throw that out there for thought....everyone seems to be spinning their wheels and getting nowhere.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-2887382220113280558.post-75127248507119862572012-03-05T15:00:20.672-05:002012-03-05T15:00:20.672-05:00Don, glad you liked the article and thanks for rea...Don, glad you liked the article and thanks for reading the blog. <br /><br />To comment briefly on the solutions posed by the anonymous posters, I’m afraid there’s some defects in your theories that federal courts will use to dismiss them.<br /><br />First, 42 USC 1983 is only a vehicle (or method) to bring suit in federal court to obtain remedies for violation of substantive constitutional violations. Here, the underlying constitutional violation is the same matter that we all know federal courts will not hear because it revolves around tribal membership. Even if you dress up your 1983 cause of action around 14th Amendment violations, it’s still the same as asking a federal court to hear a disenrollment dispute. The Santa Clara decision, Jeffredo, and other federal precedent will bar this claim. Depending upon the date of disenrollment, it may even already be barred under statute of limitations. (In California, statute of limitations will be roughly 2 to 3 years from the accrual of the cause of action.)<br /><br />Second, suing the BIA under the Administrative Procedures Act sounds good in theory, but my guess would be that courts would deny such a motion as well. Courts will set aside an agency decision only if it finds that it acted arbitrarily and capriciously, i.e., whether the agency decision had a rational relationship to its duties delegated to them by Congress. The rational basis standard is a notoriously low burden for the government to meet since they can effectively argue that they take a cautious and hands-off approach to intervening in membership disputes because such disputes are inherently intimate to tribal sovereignty. Essentially, it’s another form of denial to hear the dispute based on Santa Clara.<br /><br />Third, coupling a federal cause of action with a Congressional “request” to essentially recognize the disenrolled as members of their own tribe or re-package them into the old one will be dismissed outright as a violation of federalism. Under what is known as the “Political Question Doctrine,” federal courts will not intrude into matters that are specifically committed to the political branches for relief. Here, Indian tribes are regulated ONLY through the Commerce Clause and, to some extent, the Property Clause. Also, Congress has the 7-point criteria to determine who is or is not an Indian tribe. Because the Constitution specifically delegates regulation of Indian tribes to Congress, and its agencies like the Bureau of Indian Affairs, a court will dismiss this easily.<br /><br />Believe me, I’m all for finding creative ways to challenge a disenrollment dispute, but short of a Congressionally legislated miracle, I’m not confident in seeking help from the courts. The Bill of Attainder, while only a theory at this point, is one of few solutions I think has even a morsel of merit.Erick Rhoanhttp://erickregalado.wordpress.comnoreply@blogger.comtag:blogger.com,1999:blog-2887382220113280558.post-33818437804521330042012-03-05T11:42:08.141-05:002012-03-05T11:42:08.141-05:00Here's a tactic for the disenrolled allottees....Here's a tactic for the disenrolled allottees....petition the BIA for federal recognition in conjunction with a congressional request, seeking a new reservation within your original homelands, assuming you have the historical backing to convince the bia....you can at least sue them if they fail to give you an honest review....its the same long shot that you would be taking with the "bill of attainder" argument....<br /><br />Hey....just a sill thoughtAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-2887382220113280558.post-67034098117237422692012-03-05T10:27:18.337-05:002012-03-05T10:27:18.337-05:00This is what I would do,I would sue the BIA under ...This is what I would do,I would sue the BIA under title 42 1983 1985...(rios family) for 20 million or what ever the court deems proper...arising from a 5th amendment due process violation and it can be reviewed under the judicial review provisions of the APA act.<br /> <br />( which james fletcher acted arbitrary and capriious in his duties as a federal employee )<br /><br />WHAT A LAW SUIT (UNITED STATES DENIES YOU ACCESS TO LAND THEY GAVE YOU) hahahahaha jajajajaAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-2887382220113280558.post-15864366279888630792012-03-05T10:13:39.536-05:002012-03-05T10:13:39.536-05:00oh sorry pechanga slip of the tongue, the Rios fam...oh sorry pechanga slip of the tongue, the Rios family could also use that title 42 1983 for their land issue .......it would flop a case right in front of a federal judge.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-2887382220113280558.post-11164601135388100342012-03-05T10:05:26.621-05:002012-03-05T10:05:26.621-05:00Check this out ,you can't review dis enrollmen...Check this out ,you can't review dis enrollment at pechanga with the BIA (like san pasqual)because of the tribes constitution.<br /><br />But how about you review the BIA'S adiministrative procedures regarding what happened (as a U.S citizen)under Title 42 1983 arising from a 5th amendment due process violation and it can be reviewed under the judicial review provisions of the APA act.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-2887382220113280558.post-73143111101544674642012-03-05T00:16:17.287-05:002012-03-05T00:16:17.287-05:00This is "confused".....I just read throu...This is "confused".....I just read through the the case cited by Erick...and agree with "dude"....the details shed more insight for me as to its background and I still say you are up against the ICRA....and do not fault one from trying at all.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-2887382220113280558.post-18151576427848679712012-03-04T23:49:18.094-05:002012-03-04T23:49:18.094-05:00. The US Courts found that disenfranchisements con.... The US Courts found that disenfranchisements constituted "custody" in violation of ICRA.<br /><br />DUDE wrong again ......Dude people in this chat room have gone to battle over what your talking about....this aint are first rodeo!Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-2887382220113280558.post-3438251316560658392012-03-04T23:43:05.962-05:002012-03-04T23:43:05.962-05:00Don dude,your wrong the court just held that Dis e...Don dude,your wrong the court just held that Dis enrollment does not meet the Custody or "detention" requirements. It never hooks federal court and makes it into the second round.<br /><br />FEDERAL COURT HAS COMPLETE JURISDICTION OVER A REAL BANISHMENT CASE...........Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-2887382220113280558.post-86427785695095383472012-03-04T23:06:31.268-05:002012-03-04T23:06:31.268-05:00THERE ARE Banishments that happened at Pechanga ju...THERE ARE Banishments that happened at Pechanga just before the Jeffrado ruling showing the disregard and respect for any ORIGINAL PECHANGA PEOPLE and any icra law useing the Bia TO carry out the lies of tribal government of Pechanga I recieved a letter in regards to the meeting Amy Dutschke Tribal leadership conference on Banishment there can be saction brought against the TRIBE CONCERNING TOSOBAL Mr Eban needs a formal complaint to proceed They have been Banished since 2010 from there land on the deed it states some are enrolled how is that BECAUSE MARK TOLD CONGRESS ALL ALLOTEES ARE ENROLLEDAnonymousnoreply@blogger.com