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Case 3:17-cv-01149-BAS-KSC Document 1 Filed 06/08/17 PageID.

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1 ALEXANDRA R. MCINTOSH #166304


Law Office of Alexandra R. Mcintosh, APC
2 2214 Faraday A venue
3
Carlsbad, CA 92008
(760) 753-5357
4
CAROLYNCHAPMAN#l41067
5 Law Office of Carolyn Chapman
P.O. Box 461404
6 Escondido, CA 92046
(619) 916-8420
7
Attorneys for Plaintiffs
8
9 UNITED STATES DISTRICT COURT
10
SOUTHERN DISTRICT OF CALIFORNIA
11

12
Christina Alvarado, an individual, ) Case No. '17CV1149 BAS KSC
13
Patsy Alvarado, an individual, )
14 Lisa Belardes, an individual, ) Related to Case No.
15 Paul contreras, an individual, ) 16-cv-2442-AJB-KSC
Johnny Contreras, an individual, )
l6 Rudolph Contreras, an individual, ) COMPLAINT FOR:
17 Josie Delgado, an individual, )
Lajean Miller, an individual, ) (1) Violation of Civil Rights
18
Dolores Perez, an individual, ) Due Process
19 Huumaay Quisquis, an individual, ) Equal Protection
James Quisquis, an individual, ) Property Rights
20
Elsie Rohas, an individual, ) (2) Breach of Fiduciary Duty
21 Amelia Martinez Contreras ) (3) Unconstitutional Diminution
22 Villalobos, aka Melia Duenas ) Of Patented Land
an individual, Della Villalobos ) (4) Fraud and Misrepresentation
23 Ochoa, an individual, ) (5) Civil Conspiracy
24 Josie Villalobos, an individual, ) (6) Damages
Mary Villalobos Varela, an individual)
25
Josie Villalpando, an individual, )
26 Gloria Zwicker, an individual, )
27
28
Case 3:17-cv-01149-BAS-KSC Document 1 Filed 06/08/17 PageID.2 Page 2 of 49

1
2 and DOES 1 - 400, inclusive, )
,.,
)
.)
Plaintiffs, )
4 )
v. )
5 )
6 UNITED STATES OF AMERICA; )
DEPARTMENT OF INTERIOR; )
7
BUREAU OF INDIAN AFFAIRS; )
8 RYAN ZINKE, Secretary of the )
9 Department of Interior, United States )
of America; MICHAEL BLACK, )
IO Acting Assistant Secretary Indian )
11 Affairs, Department of Interior - )
United States of America; )
12 WELDON LOUDERMILK, )
13 Director Bureau of Indian Affairs; )
AMY DUTSCHKE, Regional )
14
Director, Department of Interior - )
15 Indian Affairs, United States of )
16 America; JAVIN MOORE, )
Superintendent of the Department of )
17 Interior Indian Affairs, Southern )
18 California Agency, all in their )
official capacity, and ROES 1 )
19 through 200, inclusive, )
20 )
Defendants. )
21
)
22 )
23
24
25
26
27 2
28
COMPLAINT
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TABLE OF CONTENTS
TO
COMPLAINT

JURISDICTION AND VENUE

RELEVANT LAW

THE PARTIES

A Plaintiffs
B Defendants

SOVEREIGN IMMUNITY IS INAPPLICABLE

BACKGROUND

SUBSTANTIVE ALLEGATIONS

FIRST CLAIM FOR RELIEF: VIOLATION OF CIVIL RIGHTS-


DUE PROCESS

Plaintiffs allege the Defendants denied Plaintiffs Due Process of law


when the Defendants Intentionally failed to disclose the fact that
25 CFR 48 .5(f) was being added to 25 CFR 48 .5 in Order for the
Defendants to find a legal basis to Enroll non-San Pasqual persons
into the BAND.

SECOND CLAIM FOR RELIEF: VIOLATION OF CIVIL RIGHTS-


EQUAL PROTECTION

Plaintiffs allege the Defendants denied Plaintiffs the guarantees of the


Equal Protection Clause of The United States Constitution when they
enrolled non-San Pasqual persons into the BAND.
3

COMPLAINT
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1
2
IX THIRD CLAIM FOR RELIEF - VIOLATION OF CIVIL RIGHTS:
3
VIOLATION OF PROPERTY RIGHTS
4
5 The Defendants, by their acts, failure to act, omissions negligence
Or fraud by enrolling non-San Pasqual Indians into the BAND
6 Have denied Plaintiffs their rightful property rights including,
7 But not limited to : judgment payments, income, land, schooling,
8 Health, and housing.

9
x FOURTH CLAIM FOR RELIEF - BREACH OF FIDUCIARY
10 DUTY 25 USC SECTION 2
11
Defendants have a fiduciary duty to Plaintiffs which is imposed
12
By 25 USC Section 2. Defendants, by their intentional acts,
13 Failure to act, omissions, or negligence have violated their
14 Statutory duty to Plaintiffs causing Plaintiffs to suffer damages.

15
XI FIFTH CLAIM FOR RELIEF - UNCONSTITUTIONAL
16 DIMINUTION OF TRIBAL RIGHTS PURSUANT TO 1891 LAND
17 PA TENT SIGNED BY PRESIDENT TAFT.

18 Defendants, by their intentional, negligent, or fraudulent


19 Acts have unconstitutionally diminished Plaintiffs' land
20 Rights guaranteed to them pursuant to the 1891 Land
Patent [codified in 191 O] signed by President Taft. As a
21
Result, Plaintiffs have suffered damages.
22
23 XII SIXTH CLAIM FOR RELIEF - UNCONSTITUTIONAL
DIMINUTION OF LAND PATENTED LAND DUE TO
24
FRAUD AND MISREPRESENTATION
25
26 Defendants have a statutorily imposed fiduciary duty to

27 4

28
COMPLAINT
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2 Represent Plaintiffs in all matters and to manage their


Affairs with the highest degree of honesty and trust.
3
Defendants have beached this statutory duty by defrauding
4 Plaintiffs. This breach of duty has resulted in Plaintiffs
5 Suffering severe damages, including -but not limited to -
Emotional, and monetary damages as a result of the fraud
6
That defendants have perpetuated upon Plaintiffs.
7

8 XIII SEVENTH CAUSE OF ACTION - FRAUD AND


MISREPRESENTATION
9

10 XIV EIGHTH CAUSE OF ACTION - CIVIL CONSPIRACY


11 The Defendants have been engaged in a civil conspiracy to
Reduce the benefits that the federally enrolled Plaintiffs
12
are entitled to receive in violation of the law.
13
14 PRAYER FOR RELIEF
15
JURY TRIAL DEMANDED
16

17
18

19

20
21

22
23

24

25

26
27 5

28

COMPLAINT
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1
2 I

3
JURISDICTION AND VENUE
4

5 1. This Court has jurisdiction over the civil rights claims pursuant to

6 Title 42 U.S.C. l 985and 42 U.S.C. 1981. This Court has subject matter
7
jurisdiction pursuant to Title 28 U.S.C. 1331 (Federal Question); 28 U.S.C.
8
9 l 343(a)(l)-(a)(2) (Civil Rights); Title 28, U.S.C.331, as a civil action arising
10
under the Constitution and laws of the United States; Title 5 U.S.C. 701, 702,
11

12
(Judicial review of agency action), 704, 706( I), etc.seq., as an action to set aside

13 unlawful agency action unlawfully withheld or unreasonably delayed. Title 28


14
U.S.C. 1361 gives this Court jurisdiction to compel an officer or employee of the
15
16 United States or any agency thereof to perform a duty owed to Plaintiffs.

17 2. This Court has supplemental jurisdiction over the claims arising


18
under common law, pursuant to 28 U.S.C. 1367, because these claims arise from
19

20 the same nucleus of operative facts alleged in this Complaint, and are so related to
21
the federal claims over which this Court has original jurisdiction that they form
22
23 part of the same case or controversy.

24 3. Although federal courts have no jurisdictional basis to directly review


25
a tribe's enrollment decisions, it does have jurisdiction to challenge agency action
26
27 6

28

COMPLAINT
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1
2
under the Administrative Procedures Act (APA), 5 U.S.C. 500-596; 704, 706,

3 et.seq. A plaintiff may seek review of the agency' s decision "under the APA's
4
arbitrary and capricious standard." Aguayo v Jewell, 14-56909 (91h Cir. 7/8/16)
5
6 citing Alto v. Black, 738 F.3d 1111, 1123 (9th Cir. 2013). ("The propriety of
7
agency action is a federal question over which we have jurisdiction, even where
8
the agency applied tribal law in the contest of a membership dispute"). 73 8 F .3 d at
9

10 1123-25.
11
4. "[F]inal agency action for which there is no other adequate remedy in
12

13 a court [is] subject to judicial review." 5 U.S.C. 704. Judicial review under the

14 APA is not proper, however, ifthe "agency action is committed to agency


15
discretion by law." 5 U.S.C. Section701(a)(2).
16

17 5. Plaintiffs allege that Article III of the Constitution of the San Pasqual
18
Band of Mission Indians requires the Department of Interior - Bureau of Indian
19

20
Affairs to review and approve tribal enrollment. Therefore, the act is not

21 discretionary.
22
6. Plaintiffs allege the APA creates a "strong presumption that Congress
23
24 intends judicial review of administrative action." Bowen v. Mich. Acad. OfFamily

25
Physicians 476 U.S. 667, 670 (1986). Section 702 of the APA allows judicial
26
27 7

28
COMPLAINT
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2 review of Agency action by a "person suffering legal wrong because of agency

3 action [or inaction], or adversely affected or aggrieved by agency action [or


4
inaction] within the meaning of a relevant statute."
5
6 7. Plaintiffs allege that "Agency action" in the statute "includes the
7
whole or part of an agency rule, order, license, sanction, relief, or the equivalent or
8
denial thereof, or failure, to act." 5 U.S.C. 551 (13); see 5 U.S.C. 701(b)(2).
9

10 The BIA's "denial of relief to Plaintiffs and its failure to act on their behalf, as a
11
final agency action is subject to judicial review (See, Aguayo v. Jewell, Supra at
12

13 17] because Defendants' actions and/or failure to act have denied Plaintiffs their

14 rights to Due Process and opportunity to be heard, and Equal Protection in


15
violation of their Constitutional Rights and in violation of their Civil Rights.
16

17 8. Venue in this Court under Title 28 U.S.C. 139e(3) is proper in that


18
the action is against the Defendant officials acting in their official capacity under
19
20
color of legal authority of an agency of the United States maintaining a presence in

21 this jurisdiction. And, because most of the Plaintiffs are residents of the County of
22
San Diego, California.
23

24 9. Venue is proper in this District pursuant to 28 U.S.C. 129l(e)

25 because Defendants are Federal agencies: the United States Department of the
26
27 8

28
COMPLAINT
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2 Interior, Bureau of Indian Affairs. A substantial part of the events and omissions

3 giving rise to this action occurred in this District. And, the location of the Native
4
American Indian Reservation that is the subject matter of the action is located in
5
6 this district.
7
10. The San Pasqual Band of Mission Indians is a Federally recognized
8
reservation and is geographically located in the County of San Diego, State of
9

IO California.
11
II
12

13 RELEVANT LAW

14 11 . Plaintiffs refer to and reallege Paragraphs 1 through 10, inclusive, of


15
this Complaint, and incorporate the same by reference as though fully set forth at
16

17 length herein.
18
12. Plaintiffs have brought this Complaint under the following Statutes,
19

20
laws and constitutions: San Pasqual Constitution; the Due Process and Equal

21 Protection clauses of the Constitution of the United States; Administrative


22
Procedures Act, [5 U.S.C. 500-596]; the Indian Reorganization Act (25 U.S.C.:
23
24 Indians] (which was adopted by the San Pasqual Mission Band of Indians); the
25
Indian Civil Rights Act of 1968 [25 U.S.C. Ch.15] (which was adopted by the San
26
27 9

28

COMPLAINT
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1
2 Pasqual Mission Band of Indians); 25 U.S.C. 1 through 345; Title 42,

3 U.S.C.1983; Title 28, U.S.C.1331, et.seq.; 42 U.S.C. 1981 (1970); and 25


4
C.F .R. 48, et.cet.
5
6 13. In 1934, Congress passed the Indian Reorganization Act (IRA).
7
[Indian Reorganization Act, ch. 576, 48 Stat. 984 (1934) (codified as amended at
8
25 U.S.C., Sections 461-479)]. The IRA granted each Indian tribe "the right to
9
1O organize for its common welfare, and ... adopt an appropriate constitution and by
11
laws," to be approved by the Secretary of the Interior. [25 U.S.C., Section 476(a)].
12

13 By the terms of the IRA, it applies only to those tribes who vote for its application.

14 The Secretary of the Interior was directed to call such an election "within one year
15
after June 18, 1934." Id. The Secretary called such an election, and the San
16

17 Pasqual Band voted for adopting the IRA in 1934 .. [Theodore Haas, Ten Years of
18
Tribal Government Under LR.A. , 14 (U.S. Indian Serv. 1947).] On January 14,
19

20 1971 , the Secretary of the Interior approved the Constitution of the San Pasqual

21 Mission Band of Indians.


22
14. The Indian Reorganization Act provided for keeping Indian land in
23
24 trust. It returned to the tribe reservation land that remained surplus after
25
allotments; it restricted the granting of rights-of-way over reservation lands; it
26
27 10

28
COMPLAINT
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2 restricted release of lands; and it provided for the Secretary of the Interior to

3 purchase holdings in the reservation for Indian use. It did much to help the Indians
4
develop democracy. Congress, through the Indian Reorganization Act, invoked the
5
6 tribe as a democratic operational mechanism. It was an important step in
7
assimilating Indians to modem democratic life ... Giving Indians the right of
8
self-determination.
9

10 15. Title 25, U.S.C., 2 - The BIA's enabling statute gives the
11
Commissioner of Indian Affairs (under the direction of the Secretary of the
12
13 Interior) the "management of all Indian affairs and of all matters arising out of

14 Indian relations." [Aguayo at 18.] Therefore, the BIA's action is reviewable under
15
25 U.S.C., 2.
16
17 16. The APA requires the court to set aside agency action that is
18
"arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
19

20
law." 5 U.S.C., 706(2)(A).

21 17. The BIA's decision on an enrollment issue is "committed to agency


22
discretion by law" where the agency must apply tribal law to reach its decision. The
23
24 tribal governing documents of the San Pasqual Band of Mission Indians expressly
25
incorporate federal regulations that require Secretarial approval of dis-enrollment
26
27 11

28
COMPLAINT
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2 and enrollment decisions. (i.e. 25 U.S.C. 48). As a result, the Secretary must apply

3 the tribe's own enrollment criteria. The fact that "the substantive law to be applied
4
in this case is tribal law does not affect the court's jurisdiction over an APA
5
6 challenge to the BIA's decision. (Exhibit 1)
7
18. The Tribe's Constitution clearly states, in pertinent part:
8
"We, the people of the San Pasqual Band of Mission Indians,
9
(Diegueno Indians), in order to establish a fonnal organization
IO under the provisions of Section 16 of the Indian Reorganization
11 Act of June 18, 1934 (48 Stat. 984) as amended by the Act of
June 15, 1935 (49 Stat. 378), and to promote our common
12
welfare, do hereby adopt the following constitution and
13 bylaws."
14

15
.. . ARTICLE III - MEMBERSHIP

16 Section 1. Membership shall consist of those living persons


17 whose names appear on the approved Roll of October 5, 1966,
according to Title 25, Code of Federal Regulations, Part 48.l
18
through 48.15.
19

20 Section 2. All membership in the band shall be approved


according to the Code of Federal Regulations, Title 25, Part
21
48.1 through 48.15 and an enrollment ordinance which shall be
22 approved by the Secretary of the Interior.
23
24
. .. "The following powers shall be exercised pursuant to
ordinances or resolutions passed by the general counsel and
25 approved by the Commissioner of Indian Affairs: .. . To make
26 assignments of reservation lands .... To control future
27 12

28

COMPLAINT
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2 membership, loss of membership and the adoption of members.

3
ARTICLE IX - BILL OF RIGHTS
4

5 "The protections guaranteed to persons by Title II of the Civil


Rights Act of 1968 (82 Stat. 77) against actions of a tribe in
6
exercising its powers of self-government, shall apply to the San
7 Pasqual Band of Mission Indians."
8
19. The BAND' s Constitution expressly incorporates the provisions of
9
10 25 C.F.R. Part 48 which governs enrollment decisions of the BAND. [See, Alto v.
11
Black, 738 F.3d 1111, 1124 (91h Cir. 2013]. (Exhibit2)
12
20. The 1891 Land Patent which was signed by President Taft and finally
13

14 codified in 1910 specifically states: "[U]nder an Act of Congress of January 12,


15
1891 (26 Statute 712) ... Congress ... HEREBY DECLARES that it does and will
16
17 hold the said tracts of land selected .... for the period of 25 years in trust for the

18 sole use and benefit of the said San Pasqual Band or Village of Indians, according
19
to the laws of California, and at the expiration of the said period the united States
20
21 will convey the same ... by patent to the said San Pasqual Band or Village of
22
Indians, as aforesaid, in fee, discharged of said trust and free of all change or
23

24
incumbrance what-so-ever. . ." It was not until 1910 that Congress codified this

25 Act, but the San Pasqual Indians did not get their original land back. (Exhibit 3)
26
27 13

28
COMPLAINT
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1
2 21. Plaintiffs are not required to exhaust administrative remedies where

3 the administrative body is shown to be biased or has otherwise predetermined the


4
issue before it. McCarthy v. Madigan 503 U.S. 140 (1992)
5
6

7
III
8
THE PARTIES
9

1O 22. PLAINTIFF CHRISTINA ALVARADO is a resident of San Diego


11
County. She is a federally recognized enrolled member of the San Pasqual Mission
12
13 Band of Indians. Her enrollment number is 26.
14
23 . PLAINTIFF PATSY ALVARADO is a resident of San Diego County.
15
She is a federally recognized enrolled member of the San Pasqual Mission Band of
16

17 Indians. Her enrollment number is 13 1.


18
24. PLAINTIFF LISA BELARDES is a resident of San Diego County.
19

20
She is a federally recognized enrolled member of the San Pasqual Mission Band of

21 Indians. Her enrollment number is 24.


22
25. PLAINTIFF PAUL CONTRERAS is a resident of San Diego County.
23
24 He is a federally recognized enrolled member of the San Pasqual Mission Band of
25
Indians. His enrollment number is 51 .
26
27 14

28

COMPLAINT
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2 26. PLAINTIFF JOHNNY CONTRERAS is a resident of San Diego

3 County. He is a federally recognized enrolled member of the San Pasqual Mission


4
Band of Indians. His enrollment number is 245.
5
6 27. PLAINTIFF RUDOLPH CONTRERAS is a resident of San Diego
7
County. He is a federally recognized enrolled member of the San Pasqual Mission
8
Band of Indians. His enrollment number is 52.
9
10 28 . PLAINTIFF JOSIE DELGADO is a resident of San Diego County.
11
She is a federally recognized enrolled member of the San Pasqual Mission Band of
12
13 Indians. Her enrollment number is 28.
14 29. PLAINTIFF LAJEAN MILLER is a resident of San Diego County.
15
He is a federally recognized enrolled member of the San Pasqual Mission Band of
16

17 Indians. His enrollment number is 273 .


18
30. PLAINTIFF DOLORES PEREZ is a resident of San Diego County.
19

20
She is a federally recognized enrolled member of the San Pasqual Mission Band of

21 Indians. Her enrollment number is 46.


22
31. PLAINTIFF HUUMAAY QUISQUIS is a resident of San Diego
23
24 County. He is a federally recognized enrolled member of the San Pasqual Mission
25
Band of Indians. His enrollment number is 290.
26
27 15

28
COMPLAINT
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2 32. PLAINTIFF JAMES QUISQUIS is a resident of San Diego County.

3 He is a federally recognized enrolled member of the San Pasqual Mission Band of


4
Indians. His enrollment number is 180.
5
6 33. PLAINTIFF ELSIE ROJAS is a resident of San Diego County. She is
7
a federally recognized enrolled member of the San Pasqual Mission Band of
8
Indians. Her enrollment number is 130.
9

10 34. PLAINTIFF Alv1ELIA MARTINEZ CONTRERAS VILLALOBOS,


11
aka Melia Duenes, is 104 years old. She is a resident of San Diego County. She is
12

13 a federally recognized enrolled member of the San Pasqual Mission Band of

14 Indians. Her enrollment number is 219.


15
35. PLAINTIFF DELLA VILLALOBOS OCHOA is a resident of San
16
17 Diego County. She is a federally recognized enrolled member of the San Pasqual
18
Mission Band of Indians. Her enrollment number is 146.
19

20 36. PLAINTIFF JOSIE VILLALOBOS is a resident of San Diego

21 County. She is a federally recognized enrolled member of the San Pasqual Mission
22
Band of Indians. Her enrollment number is 2.
23
24 37. PLAINTIFF MARY VILLALOBOS VARELA is a resident of San
25
Diego County. She is a federally recognized enrolled member of the San Pasqual
26
27 16

28
COMPLAINT
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2 Mission Band of Indians. Her enrollment number is 104.

3 38. PLAINTIFF JOSIE VILLALPANDO is a resident of San Diego


4
County. She is a federally recognized enrolled member of the San Pasqual Mission
5
6 Band of Indians. Her enrollment number is 44.
7
39. PLAINTIFF GLORIA ZWICKER is a resident of San Diego County.
8
She is a federally recognized enrolled member of the San Pasqual Mission Band of
9

10 Indians. Her enrollment number is 213.


11
40. Defendant United States of America is a Governmental entity having
12
l3 supervision over defendants Department of the Interior and Bureau of Indian

14 Affairs.
15
41. Defendant RYAN ZINKE (hereinafter ZINKE") is the Secretary of the
16
17 Department of Interior. He is responsible for the supervision of the various federal
18
agencies and bureau within the Department of Interior, including the Bureau of
19

20
Indian Affairs. He is an officer or employee of the United States and has a direct

21 statutory duty to carry out the provisions under Title 25 U.S.C. 48.2(a).
22
Defendant ZINKE is being sued in his official capacity only.
23
24 42. Defendant MICHAEL BLACK (hereinafter 'BLACK") is the Acting
25
Assistant Secretary - Indian Affairs of the Department and head of the Bureau of
26
27 17

28
COMPLAINT
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2 Indian Affairs. Plaintiffs believe and thereon allege that Defendant. ZINKE has

3 delegated the duty to oversee and review the TRIBE'S tribal membership issues to
4
Defendant BLACK. Defendant BLACK is being sued in his official capacity only.
5
6 43. Defendant WELDON 'BRUCE' LOUDERMILK (hereinafter
7
"LOUDERMILK") is the Director of the Bureau of Indian Affairs within the
8
Department. Defendant Loudermilk is responsible for the day-to-day operations of
9

10 the BIA. Defendant Loudermilk is being sued in his official capacity only.
11
44. Defendant AMY DUTSCHKE (hereinafter "DUTSCHKE) is Director
12

13 Department of Interior Indian Affairs, Pacific Region, Defendant DUTSCHKE is


14 responsible for the day-to-day operations of the BIA Pacific Regional Office.
15
Defendant DUTSCHKE is being sued in her official capacity only.
16
17 45. Defendant JAVIN MOORE (hereinafter 'MOORE') is Superintendent
18
Department of Interior Indian Affairs Southern California Agency. Defendant
19

20
MOORE is responsible for the day-to-day operations of the BIA, Southern

21 California Agency. Defendant MOORE is being sued in her official capacity only.
22
46. ROE defendants, 1 through 100, inclusive, are government employees
23
24 who are agents acting in the scope of delegated authority, the scope of which is
25
unknown to Plaintiffs at this time.
26
27 18

28
COMPLAINT
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2 IV

3 SOVEREIGN IMMUNITY IS INAPPLICABLE


4
47. Plaintiffs refer to and reallege Paragraphs 1 through 46, inclusive, of
5
6 this Complaint, and incorporate the same by reference as though fully set forth at
7
length herein.
8
9
48. Plaintiffs are not challenging the actions of the San Pasqual

10 Enrollment Committee or any actions of the Tribe itself, rather they are bringing
11
this complaint against the United States Government, and its subordinate
12

13 departments the Department of the Interior and the Bureau of Indian Affairs and its
14
employees. They are seeking legal relief against the actions, inactions, omissions,
15

16 intentional, negligent, and/or fraudulent acts of the United States government

17 through the Department of Interior, the Bureau of Indian Affairs, and its
18
employees. Therefore, Plaintiffs allege that sovereign immunity is not a bar to their
19
20 claims against the United States government.
21
40. Plaintiffs recognize: "As a matter of federal law, an Indian tribe is
22
23
subject to suit only where Congress has authorized the suit or the tribe has waived

24 it sovereign immunity." Kiowa Tribe of Okla. v. Mfg. Tech., Inc., 523 U.S. 7541,
25
754 (1998).
26
27 19

28
COMPLAINT
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2 VI

3
BACKGROUND
4

5 50. Plaintiffs refer to and reallege Paragraphs 1 through 49, inclusive, of

6 this Complaint, and incorporate the same by reference as though fully set forth at
7
length herein.
8
9 51 By Executive Order dated January 27, 1870, President U.S. Grant
10
established the San Pasqual Reservation on the rich farmland of what is now the
11

12 San Pasqual Valley, the traditional home of the San Pasqual people. This order

13 was cancelled only a year later due to the out-cry from the local press and citizenry
14
and the recent discovery of gold in the area.
15
16 52. By 1878 the Indians had been pushed out of the San Pasqual Valley.
17
They were forced to relocate to scattered places all over Southern California. Since
18
19
that time the San Pasqual Band has continually struggled in vain to reestablish its

20 identity as a community.
21
53. The current San Pasqual Reservation was established on July 1, 1910
22

23 by an act of Congress that codified the 1891 Land Patent issued by President Taft.
24
Prior to that, as other Mission Indian Reservations were set aside, almost every
25

26 report of the Bureau Indian Agent from 1869 on mentioned the crying need to

27 20

28
COMPLAINT
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2 establish a Reservation for the landless San Pasqual Band.

3 54. In 1910 The Bureau of Indian Affairs hired a white man named Frank
4
Trask, who was at that time living on the Mesa Grande Reservation with his wife, a
5
6 registered Santa Ysabel Indian, to take care of the new reservation and to live in the
7
house that was on the property: Property that would only sustain a few people, but
8
9 was valuable to squatters.

10 55. Between 1910 and 1950 several San Pasqual families attempted to
11
move onto the Reservation. However, they were forbidden entry by Frank Trask.
12
13 In subsequent years descendants of Frank Trask refused to allow true San Pasqual
14
Indians on their patented land.
15

16
56. For the purpose of gaining political control over their land, the San

17 Pasqual Indians began, in the early 1950's to formally organize themselves.


18
57. They were told by the Department of the Interior that the burden of
19
20 proving membership was upon the individual applicant. In order to do that they
21
approached an anthropologist, Dr. Florence Shipek, for help in assembling the
22

23
necessary documentation. Dr. Shipek worked with the San Pasqual Indians for

27 21

28
COMPLAINT
Case 3:17-cv-01149-BAS-KSC Document 1 Filed 06/08/17 PageID.22 Page 22 of 49

2 the Enrollment Committee at that time were persons whose San Pasqual ancestry
3 was unquestioned. However, because Bureau officials insisted that everyone who
4
claimed a right to membership in the Band was entitled to vote in determining the
5
6 substantive and procedural content of the membership rules, two persons whose
7
San Pasqual ancestry was questioned also served on the committee. One of these
8
9 two persons was Florence Trask Wolfe.

10 58. Subsequently, the Secretary of the Interior promulgated the San


11
Pasqual's enrollment regulations, now codified as 25 U.S .C. 48. [25 C.F.R. 48].
12
13 Over objections by the true San Pasqual Indians, the Bureau insisted that the 1910
14
Census role be used as the basis for determining membership. The true San
15

16
Pasqual Indians insisted that the 1909 role was the only accurate census roll.

17 (Exhibit 2)
18
59. The Bureau officials told the true San Pasqual people that they did not
19
20 need a lawyer.
21
60. Many people of questionable San Pasqual ancestry and several who
22
did not even claim membership participated in many key votes and discussions
23

24 including the vote on whether to accept the proposed regulations [i.e. 25 C.F.R.
25
48].
26
27 22

28
COMPLAINT
Case 3:17-cv-01149-BAS-KSC Document 1 Filed 06/08/17 PageID.23 Page 23 of 49

2 61. Section 48.5(f) of the enrollment regulation, which has proven to play

3 an important role in the subsequent membership dispute, was added by the Bureau
4
as one of several "purely administrative" changes without the knowledge or
5

6 approval of the San Pasqual people. The language of this section is a repudiation
7
of the promises made by many Bureau officials throughout the negotiation that
8
9
permission to vote in determining the substantive and procedural content of the

10 membership rules would not be considered in determining the right to membership


11
in the Band.
12
13 62. In fact, 48.5(f) seems to have been specifically designed to admit to
14
membership certain individuals, including the Trask family, who have questionable
15

16
credentials. This section relies on the 1961 memorandum of the Regional Solicitor:

17 a memorandum that relies on the political participation in San Pasqual affairs of


18
those individuals in overturning the decisions of the Enrollment Committee.
19
20 63. These and other circumstances strongly indicate that the Bureau has
21
acted as an advocate on behalf of the Trask family and other non-San Pasqual
22

23
people throughout the enrollment process.

24 64. The Enrollment Committee decided to proceed to review the


25
applications for membership. This decision was based upon the Committee's
26
27 23

28

COMPLAINT
Case 3:17-cv-01149-BAS-KSC Document 1 Filed 06/08/17 PageID.24 Page 24 of 49

1
2 confidence that the phrase "blood of the Band", upon which they had carefully
3 inserted in all the clauses relating to membership, would protect the group's
4
heritage and identification. (Exhibit 4)
5
6 65. In 1965 theSolicitor issued an Opinion interpreting the enrollment
7
regulation. The Solicitor's Opinion declared that twenty applicants [mostly Trask
8
9
descendants] who were rejected by the Enrollment Committee were entitled to

10 membership in the San Pasqul Band because the key phrase "Indian Blood of the
11
Band" in 25 C.F.R. 48.5(b) is, in his reading of the regulation, completely devoid
12
13 of significance. (Exhibit 5)
14
66. A similar reading of the phrase "Indians whose names appear as
15

16
members of the Band" in 25 C.F.R. 48.5(a) in an earlier 1961 memorandum of the

17 Regional Solicitor had resulted in the approval by the BIA of two additional
18
applicants that had been rejected by the Committee. (Exhibit 6)
19
20 67. These actions by the Defendants resulted in the admission and federal
21
recognition of the Trask descendants, who have absolutely no San Pasqual Indian
22
blood but are of white heritage, and other non-San Pasqual people, into the San
23

24 Pasqual Band of Mission Indians.


25
68. The Regional Solicitor's memorandum to the Sacramento Area
26
27 24

28
COMPLAINT
Case 3:17-cv-01149-BAS-KSC Document 1 Filed 06/08/17 PageID.25 Page 25 of 49

2 Director dated August 13, 1961, considered the applicants for the enrollment of the

3 Trask descendants: Florence Trask Wolfe and Ella Trask Ward. Mrs. Wolfe and
4
Mrs. Ward were turned down by the San Pasqual Enrollment Committee. (Exhibit
5
6 4) They are listed on the census roll for the Mesa Grande Reservation as is their
7
mother, Lenora La Chappa Trask, and their grandparents, Antonio La Chappa and
8

9
Feliciana Yankee. (Exhibit 7) They are also listed on the 1910 San Pasqual census

10 roll. Their father, Frank Trask, was a non-Indian employed by the Bureau of Indian
11
Affairs as a caretaker for the San Pasqual Reservation. (Exhibit 8) The Enrollment
12
13 Committee rejected their applications along with others whose names also appeared
14
on the 1910 census role, because they had not met the burden of establishing that
15

16
they were "Indians whose names appear as members of the band" on the 1910

17 Census Roll. [25 C.F.R. 48.5(a) and (d); and because they were not San Pasqual
18
Indians.
19
20 69. The Regional Solicitor overruled the committee's determination by the
21
simple expedient of ignoring the words "Indians whose names appear as members
22

23 of the band" on the 1910 Census Roll.

24 70. As the Solicitor read 25 C.F.R. 48.5(a), the statute admitted to


25
membership "anyone who is an Indian AND anyone whose name is listed on the
26
27 25

28
COMPLAINT
Case 3:17-cv-01149-BAS-KSC Document 1 Filed 06/08/17 PageID.26 Page 26 of 49

2 1910 Census Roll." As a result of this erroneous interpretation of the statute, the

3 requirement of membership in the San Pasqual Band was not applied to the Trask
4
family although it was applied to other rejected applicants whose names also
5

6 appeared on the 1910 Census role.


7
71. Tribal programs as defined in 83 IAM 8.0 defines the different types
8

9
of "rolls". [See 8.5]. (Exhibit 9) There is the "basic roll" which is the list of

10 persons used as the basis for determining eligibility for membership in the tribe.
11
Most tribal constitutions specify a census roll as the basis roll. However, an
12

13 allotment roll or an annuity payment roll may be used for that purpose. It should be
14
noted that generally the allotment roll and the annuity payment roll do not show the
15

16
quantum of Indian blood possessed by the individuals listed thereon.

17 72. The second type of roll is the "Tribal roll" which is a list of persons
18
who meet the requirements for membership in an Indian tribe established by the
19

20 tribe itself or by an action of congress.


21
73 . The third type of roll is the "Census roll" which is a list of the
22
population of the reservation. The Census roll usually includes in addition to the
23

24 members of the tribe all other persons affiliated with the tribal group, both Indian
25
and non-Indian.
26
27 26
28
COMPLAINT
Case 3:17-cv-01149-BAS-KSC Document 1 Filed 06/08/17 PageID.27 Page 27 of 49

1
2 74. The difference between the definitions of the three types of rolls is one

3 of the basis for the dispute in this case. The non-Indian people who were
4
participating in the original enrollment committee chose the 1910 Census roll
5
6 rather than the 1909 Tribal roll. As a result non-Indians like Frank Trask and his
7
descendants were erroneously enrolled into the San Pasqual Band of Mission
8
9 Indians by the Defendants.

10 75. All the evidence in this case clearly indicates that the Trask family
11
resided on the San Pasqual Reservation in 1910 only because Frank Trask, a white
12
13 man who is not an Indian, had been hired as the Reservation's caretaker, in order to
14
preserve it from squatters for the San Pasqual Indians.
15
16
76. On April , 1910, Frank Trask was appointed judge, earning 84.00 a

17 year.
18
77. After the Trasks moved onto the San Pasqual Indian Reservation, the
19
20 Government caused census to be taken in 1910. In this census the Trasks were
21
listed as living on the San Pasqual land. The census records of the 1920's note that
22
23
the Trask family were not San Pasqual Indians. The BIA continued to make this

24 notation on subsequent censes taken in the 1920's. (Exhibit 7)


25
77. After the census of 1852, 1860 and 1870, between 1886 and 1913 ,
26
27 27

28
COMPLAINT
Case 3:17-cv-01149-BAS-KSC Document 1 Filed 06/08/17 PageID.28 Page 28 of 49

2 the BIA continued to enumerate the San Pasqual Indians on the Bureau census each

3 year that it was taken. While the San Pasqual Indians continued to exist and live
4
near their aboriginal land, the BIA failed to enumerate them within the BIA census
5
6 records of the San Pasqual Indians after 1913.
7
78. Frank Trask's "job" as caretaker of the San Pasqual land lasted for
8
9
only one year. After his job ended, he and his family [and his present descendants]

10 have continued to squat on the San Pasqual Reservation: land that was patented to
11
the San Pasqual Band of Mission Indians in 1891 pursuant to President Hayes '
12

13 Land Patent which was codified in 1910.


14
79. In 1916 author and historian Elizabeth Judson Roberts wrote the BIA
15
16
on behalf of the San Pasqual Indians regarding the fact that the land set aside for

17 the San Pasqual Indians had no water, was rocky, unsuitable for farming, and could
18
only support one or two families. There were no efforts by the BIA to solve the
19
20 problem and get the San Pasqual Indians onto their reservation.
21
80. Roberts advised the BIA in her 1916 letter that Frank Trask was still
22
on the reservation and that he was not a San Pasqual Indian. (Exhibit 10)
23

24 81. During the 1930's the BIA stopped noting on the San Pasqual census
25
that the Trask family were not San Pasqual Indians. California government studies
26
27 28
28
COMPLAINT
Case 3:17-cv-01149-BAS-KSC Document 1 Filed 06/08/17 PageID.29 Page 29 of 49

2 performed during the 19930's noted that although there were 8 non-residents on the

3 San Pasqual reserved land, there were no San Pasqual Indians. (Exhibit 11, 12)
4
82. After the Treaties made with the California Indians were unratified by
5
6 the United States, on May 18, 1928, Congress passed the California Indian
7
Judgment Act to pay for the undelivered lands (as promised by treaty) to California
8
9
Indian descendants. As a result of this Act, the Department of the Interior sent five

10 men to California to document and "enroll" the Indians of California in order to


11
compensate them for the loss of their lands.
12
13 83. Between 1928 and 1933, the California Indians were documented and
14
acknowledged as California Indians eligible to receive compensation from the U.S.
15

16
Government for the loss of their land. Ultimately, the U.S. Government prepared

17 what is known as the 1933 California Indian Census Roll, from the information
18
they obtained in the 1928 California Indian Applications, applications that have
19
20 subsequently been determined to be totally unvettted and unreliable.
21
84. The San Pasqual Band of Mission Indians (BAND) was formally
22

23
organized under the Indian Reorganization Act of June 18, 1934, as amended, by

24 the adoption of a Constitution and Bylaws of the San Pasqual Band of Mission
25
Indians on November 29, 1970. ("Constitution").
26
27 29
28
COMPLAINT
Case 3:17-cv-01149-BAS-KSC Document 1 Filed 06/08/17 PageID.30 Page 30 of 49

2 85. The Constitution and Bylaws were approved by the Assistant

3 Secretary of the Interior of the United States on January 4, 1971.


4
86. The San Pasqual Band existed prior to formally organizing under the
5

6 Indian Reorganization Act of June 18, 1934, with its members identified on
7
preexisting tribal rolls and a census complied by the BIA.
8
9
87. The United States Constitution provides in Article III, Section 2 that

10 "[a]ll membership in the band shall be approved according to the Code of Federal
11
Regulations, Title 25, Part 48.1through48.15 and an enrollment ordinance which
12

13 shall be approved by the Secretary of the Interior." Further, the Constitution


14
provides in Article XIII, Section 1: "[t]he following powers shall be exercised
15

16
pursuant to ordinances or resolutions passed by the general council and approved

17 by the Commissioner of Indian Affairs ... (1) To control future membership, loss of
18
membership and the adoption of members." 1
19
20 88. On or about November 1950 a case was filed against the United States
21
by certain bands of Mission Indians relating to land and water rights. In 1960, the
22
case was amended to include the San Juan Indians [BAND]; This case is known as
23

24
1
25 Plaintiffs allege that neither the Band's Constitution nor the Federal Statutes allow for the Tribe
to place a moratorium on emollment or dis-emollment. Rather, 25 CFR 48 mandates the rolls
26
be kept current.
27 30

28
COMPLAINT
Case 3:17-cv-01149-BAS-KSC Document 1 Filed 06/08/17 PageID.31 Page 31 of 49

2 the Court of Claims 80-A Docket. The matter was settled and monies were paid by

3 the United States government to be held in trust and distributed by the BIA. In
4
1988, 25 C.F.R.76 was published forthe sole purpose of bringing the 1966 roll
5
6 current and to distribute the 80-A docket money to the San Pasqual Indians.
7
89. In 1966, the Bureau of Indian Affairs acknowledged that Mrs. Wolfe
8
9
and Mrs. Ward were not members of the San Pasqual Band. In a letter dated March

10 9, 1966, to Mrs. Mary C. Matteson, Mr. Leonard Hill, Sacramento Area Director,
11
states:" ... The Bureau is aware that the members of the only family which has
12

13 occupied the reservation for many years are not members of the San Pasqual
14
Band." The family referred to by Mr. Hill are the Trasks because, as the Regional
15

16
Solicitor notes in his memorandum, "For approximately 50 years the only residents

17 of the San Pasqual Reservation were the Trask family." (Exhibit 13)
18
90. The United States is required to fulfill its obligation as trustee and
19
20 protect the property it holds in trust for the use and benefit of the San Pasqual
21
Band. The trustee is charged with the obligation of protecting the corpus of the
22

23
trust and can be held liable for mismanagement if it fails to do so. To this date, the

24 Defendants have failed to act to remedy situations brought about by its unilateral
25
grant of valuable property rights to the Trasks [and other non-Indians] that
26
27 31

28

COMPLAINT
Case 3:17-cv-01149-BAS-KSC Document 1 Filed 06/08/17 PageID.32 Page 32 of 49

2 rightfully belong to the true San Pasqual Band of Mission Indians.

3 VII
4
SUBSTANTIVE ALLEGATIONS
5

6 91. Plaintiffs refer to and reallege Paragraphs 1 through 90, inclusive, of


7
this Complaint, and incorporate the same by reference as though fully set forth at
8

9 length herein.
10
92. The harm to Plaintiffs, including damages and injuries, are ongoing
11

12 and continue to accumulate.

13 93. An actual case and controversy has arisen and now exists between the
14
parties with regard to the following actions and/or inactions of the Defendants:
15
16 Department of the Interior, the Board of Indian Affairs, and their regional offices:
17
I) Failure to give notice in violation of due process rights; 2) Failure to correct
18

19 illegal and unsubstantiated presumptions as to blood degree; 3) Failure to provide

20 Plaintiffs with Equal Protection of the law; 4) Failure to enforce the San Pasqual
21
Constitution; 5) Failure to follow Department procedures and apply the
22

23 Administrative Procedures Act; 6) Failure to protect the diminution of the San


24
Pasqual patented land pursuant to the Land Patent of 1891 (codified in 1910) and
25

26 any subsequent land patents from squatters; 7) The actions by the Defendants are a

27 32

28
COMPLAINT
Case 3:17-cv-01149-BAS-KSC Document 1 Filed 06/08/17 PageID.33 Page 33 of 49

2 breach of the Bureau's statutory fiduciary duty to Plaintiffs; 8) The actions of

3 Defendants is a result of a civil conspiracy between the Defendants and certain


4
non-San Pasqual Indians to deprive the true San Pasqual Indians of their birth
5
6 rights; and 8) The actions of Defendants were intended to defraud, and did defraud,
7
Plaintiffs of their constitutional, statutory, common law, and God given rights.
8

9
94. In 1959, the BAND approved the enrollment ordinance promulgated

IO by the Bureau of Indian Affairs [BIA]. In 1960, the BIA, without notifying the
11
BAND's Enrollment Committee, modified the approved version of the enrollment
12

13 ordinance which was published in the Federal Code of Regulations under 25 CFR
14
48.
15

16
95. On January 4, 1971, the San Pasqual Constitution was adopted by the

17 BAND and approved by the BIA. Since its adoption in 1971, the San Pasqual
18
Constitution has never been amended; no other enrollment ordinances have been
19
20 adopted. Pursuant to Section III, Paragraph (1) and (2), 25 CFR 48 was
21
incorporated within the San Pasqual Constitution regarding membership, making it
22
23
Tribal law.

24 96. Under Santa Clara Pueblo v. Martinez 436 US 49 (1978), the


25
Supreme Court confirmed that tribes have a right to determine tribal membership.
26
27 33

28

COMPLAINT
Case 3:17-cv-01149-BAS-KSC Document 1 Filed 06/08/17 PageID.34 Page 34 of 49

2 Under 25 CFR 61.11 (b ), "The Director or Superintendent, when tribal

3 recommendations or determinations are applicable, shall accept the


4
recommendations or determinations of the Tribal Committee unless clearly
5

6 erroneous.'' (Emphasis added). Clearly, the Defendants failed to even examine and
7
review Plaintiffs' applications as required by statute.
8

9 97. Plaintiffs allege that the Defendants violated statutory mandates and

10 requirements by: a) Failing to follow the Enrollment Committee's


11
recommendations; b) Enrolling persons of white European descent; and c)
12

13 Enrolling non-San Pasqual Indians.


14

15
16 FIRST CLAIM FOR RELIEF - VIOLATION OF CIVIL RIGHTS

17 DESCENDANTS BY THEIR ACTS HAVE DENIED


18 PLAINTIFFS DUE PROCESS OF LAW
(By all Plaintiffs against all Defendants)
19

20
21
99. Plaintiffs refer to and reallege Paragraphs 1 through 98, inclusive, of

22 this Complaint, and incorporate the same by reference as though fully set forth at
23
length herein.
24
25 100. The Defendants violated Plaintiffs' (and/or their ancestors') civil
26
rights when they failed to inform Plaintiffs of the changes to the Amendment of 25
27 34

28

COMPLAINT
Case 3:17-cv-01149-BAS-KSC Document 1 Filed 06/08/17 PageID.35 Page 35 of 49

2 U.S.C. 48 .5, et.seq.

3 101. In 1959, the BIA published in the Code of Federal Register [CFR]
4
"Proposed Rule Making" - 25 C.F.R. Part 48: "Enrollment of the San Pasqual Band
5

6 of Mission Indians in California." [See 24 FR 6053] . At that time the BIA


7
presented the proposed statute to the BAND who agreed to follow this process for
8
9 enrollment of its San Pasqual members. (Exhibit 14)

10 102. On November 20, 1959, Mr. Orlando Garcia, Field Representative of


11
the Riverside Area Field, wrote a letter with attention to Mr. John Pappen. The
12

13 letter regarded "Enrollment Regulations" San Pasqual Band of Mission Indians"


14
and states, in pertinent part: "Attached for your information is a copy of the Cental
15

16
Office letter dated November 13, 1959, concerning the changes proposed for the

17 San Pasqual enrollment regulations. A copy of our October 13, 1959 letter was
18
furnished [to] you. Also enclosed for your information is a copy of the proposed
19

20 revision of Section 48 .5 submitted by the General Office with their letter of


21
October 6, 1959 for our consideration. Our October 13, 1959 letter was made in
22
23
reply." He further stated: "We suggest that the attached correspondence NOT be

24 made available to the San Pasqual enrollment committee in view of the fact
25
that they may not understand why additional corrections to the regulations
26
27 35

28

COMPLAINT
Case 3:17-cv-01149-BAS-KSC Document 1 Filed 06/08/17 PageID.36 Page 36 of 49

2 would be recommended subsequent to their acceptance of the regulations as

3 published in the Federal Register on July 29, 1959. (Emphasis added). (Exhibit
4
15)
5

6 103. Subsequently, the "Proposed Rule" was codified and published at 25


7
CFR 48 on March 2, 1960. This codified 25 CFR 48 was different in a
8
9 substantial and material way from the published Proposed Rule. Specifically the

10 codified form of25 CFR 48 added a new paragraph, 48.5(f), which states in
11
pertinent part: "A person who meets the requirements of paragraph (a), (b), or ( c)
12

13 of this section, but whose name has been carried on the census roll of another
14
reservation shall be declared ineligible for enrollment unless he can establish that
15

16
he has been affiliated with the San Pasqual Band for a continuous period of a least

17 one year immediately prior to January 1, 1959, evidenced by residence on the


18
reservation or through active participation in tribal affairs such as attendance at
19

20 tribal meetings, and being permitted to vote on matters relating to the San Pasqual
21
Reservation." (Exhibit 2)
22

23
104. Defendants' acts have violated Plaintiffs' rights to due process of law

24 causing them to suffer damages.


25
105. This unpublished and unannounced amendment to Section 48.5 was
26
27 36

28

COMPLAINT
Case 3:17-cv-01149-BAS-KSC Document 1 Filed 06/08/17 PageID.37 Page 37 of 49

2 made by the BIA specifically for the purpose of allowing the Trask Descendants to

3 claim San Pasqual Blood. It also allowed the Trask Descendants to bootstrap
4
presence on the reservation without San Pasqual Indian blood to full membership
5
6 in the Tribe.
7
106. Section 48.5(f) is unconstitutional in that it is contrary to the
8

9 requirements of 48.5 (e) that requires renouncement of enrollment of another tribe

10 before being enrolled in the San Pasqual Mission Band of Indians. Specifically,
11
48 .5(e) states: "If an Indian who applies for enrollment under the provisions of
12

13 paragraph (a), (b ), or ( c) of this section has received in his own right an allotment
14
or is enrolled as a member with some other tribe or band and has not relinquished
15

16
such allotment or enrollment prior to January 1, 1959 such person shall not be

17 enrolled.
18
107. Furthermore, Section 48.S(f) is unconstitutional in that it violates the
19

20 requirement in 25 U.S.C. 181 which states, in pertinent part:" No white man, not
21
otherwise a member of any tribe of Indians, who may after August 9, 1888, marry
22
23
an Indian woman, member of any Indian tribe in the United States, .. . shall by

24 such marriage after August 9, 1888, acquire any right to any tribal property,
25
privilege, or interest whatever to which any member of such tribe is entitled."
26
27 37

28

COMPLAINT
Case 3:17-cv-01149-BAS-KSC Document 1 Filed 06/08/17 PageID.38 Page 38 of 49

2 108. Plaintiffs allege that in the proposed rule making that was published

3 in the Federal Register on July 23, 1959, paragraph 48.5 only had 5 subsections:
4
( a),(b ),( c ),( d),(e ). This was the statute that the San Pasqual enrollment committee
5

6 voted on and accepted.


7
109. Plaintiffs allege that the Defendants intentionally and in violation of
8
9 due process, notice, and opportunity to be heard "slipped in" paragraph ( f) in the

lO final version of the bill which was passed and took effect on March 2, 1960.
11
Defendants intentionally withheld the fact that Section (f) was going to be added to
12

13 the codified bill. Section (f) states (in pertinent part): "A person who meets the
14
requirements of paragraph (a), (b), or ( c) of this section, but whose name has been
15

16
carried on the census roll of another reservation shall be declared ineligible for

17 enrollment unless he can establish that he has been affiliated with the San Pasqual
18
Band for a continuous period of at least one year immediately prior to January I,
19

20 1959, evidenced by residence on the reservation or through active participation in


21
tribal affairs such as attendance at tribal meetings, and being permitted to vote on
22

23
matters relating to the San Pasqual Reservation. Should an applicant establish his

24 eligibility for enrollment his membership claim at the other reservation must be
25
relinquished in writing prior to approval of his enrollment with the San Pasqual
26
27 38

28

COMPLAINT
Case 3:17-cv-01149-BAS-KSC Document 1 Filed 06/08/17 PageID.39 Page 39 of 49

2 Band. Notice of relinquishment must be submitted to the tribal representatives of

3 both reservations involved, the Riverside Area Field Office and the Sacramento
4
Area Office.
5

6 110. Plaintiffs allege that this unpublished section (f) of 48.5 violates
7
statutory rules and denied Plaintiffs Due Process of law.
8
9 111. Plaintiffs further allege that Defendants wrote paragraph (f) and

10 failed to disclose this fact specifically for the purpose of allowing the enrollment
11
of non-San Pasqual Indians in the BAND legitimate. Defendants did this in order to
12

13 cover up their intentional, negligent, and/or fraudulent acts.


14
112. Plaintiffs allege that they were evicted from their own land and that
15

16
the U.S. Attorney who had a statutory duty to represent them, ignored them. (See

17 25 U.S.C. 175). 2 Plaintiffs have suffered damages as a result.


18
113 . In 1960, the true San Pasqual Band ofMission Indians sent a letter to
19
20 Leonard M. Hill, BIA, Sacramento Office objecting to the Area Director's
21
determination enrolling the Trask Descendants in the San Pasqual Mission Band of
22
23
Indians. The basis for this objection was that the Trask Descendants were not of

24

25
2
25 USC 175 - "In all States and Territories where there are reservations or allotted Indians the
26
United States attorney shall represent them in all suits at law and in equity."
27 39

28

COMPLAINT
Case 3:17-cv-01149-BAS-KSC Document 1 Filed 06/08/17 PageID.40 Page 40 of 49

2 the blood of the San Pasqual Band of Mission Indians, therefore they could not

3 qualify for enrollment. (Exhibit 16)


4
114. Citing the enrollment statute pursuant to 25 CFR 48.5, the BIA stated:
5
6 "The enrollment regulations governing the preparation of the San Pasqual roll
7
provide for the enrollment of (a) those persons whose names appear as members of
8
9
the Band on the census roll of June 30, 1910, and (b) the descendants of Indians on

1O the basis roll, provided such descendants possess at least 118 degree Indian blood
11
of the band. The Trask descendants satisfy neither requirement since they possess
12

13 absolutely no San Pasqual Indian blood.


14
115. The BIA erroneously relied on the fact that both Mrs. Ward and Mrs.
15

16
Wolfe's names appeared on the June 30, 1910 census roll. The only reason why

17 their names appeared on the roll was because they were on the San Pasqual land
18
with their father Frank Trask, a White man, and their mother, an enrolled member
19

20 of the Santa Ysabel/Mesa Grande Tribe, pursuant to the hiring of their father Frank
21
Trask as a caretaker of the land by Amos Frank of the BIA. (Exhibit 8)
22
23
116. After his employment ended, because the Trasks had been squatting

24 on the San Pasqual Reservation from 1911 through the 1950's, and not because
25
they had San Pasqual Indian Blood, the BIA erroneously determined that the Trask
26
27 40
28
COMPLAINT
Case 3:17-cv-01149-BAS-KSC Document 1 Filed 06/08/17 PageID.41 Page 41 of 49

2 descendants were "clearly eligible for enrollment under Part 48.S(a), Title 25, Code
3 of Federal Regulations, all to Plaintiffs' detriment.
4
11 7. Plaintiffs allege that the BIA erroneously concluded that Helen Trask
5
6 Ward and Florence Trask Wolfe could qualify for enrollment under Part 48.S(b).
7
They did this knowing that the Indian blood that they allegedly possessed was not
8
9
San Pasqual Band blood. The opinion stated: "In this connection, it is our

10 conclusion that a construction may be placed on the language of the regulations


11
governing the preparation of the membership roll of the San Pasqual Band to hold
12

13 that persons of Indian blood who were recognized as Band members when the
14
basic roll of June 30, 2010 was complied, may be considered to be of the blood of
15

16
the San Pasqual Band." The facts do not support this assumption. (Exhibit 7, 17)

17 Census records that have always been available to the BIA show the following:
18
Rosewell Trask 1880 census - White
19

20 Frank Trask 1880 census - White


21
Lenora LaChappa 1893 census, Mesa Grande
22
23
Lenora LaChappa 1890 census, Mesa Grande

24 Lenora LaChappa 1896 census, Mesa Grande


25
Lenora LaChappa 1897 census, Mesa Grande
26
27 41

28
COMPLAINT
Case 3:17-cv-01149-BAS-KSC Document 1 Filed 06/08/17 PageID.42 Page 42 of 49

2 Lenora LaChappa 1889 census, Santa Ysabel

3 Lenora LaChappa 1900 census, Santa Ysabel


4
Lenora LaChappa 1900 Federal Census, Indian Population, 1/4 blood
5

6 Lenora LaChappa 1901 census, Santa Ysabel


7
Lenora LaChappa 1902 census, Santa Ysabel
8
9 Frank Trask, Lenora LaChappa Trask, 1905 census, Santa Ysabel

10 Frank Trask, Lenora Trask, Florence Trask, Ella Trask, 1907


11
Santa Ysabel
12

13 Frank Trask, Lenora Trask, Florence Trask, Ella Trask, 1908


14
Santa Ysabel
15
16
118 . As with other people who do not qualify for enrollment in the San

17 Pasqual Band, the BIA then added any alleged3 Indian blood Wolfe, Ward, and
18
others, and then combined the blood of other tribes in order to come to the
19
20 conclusion that they had at least 1/8 Indian blood because they needed at least 1/8
21
San Pasqual Indian Blood to be federally enrolled as a member of the San Pasqual
22
23
Band of Mission Indians, to Plaintiffs' detriment.

24

25
3
Plaintiffs use the word "alleged" because the documentation that was used by the BIA for the
26
issue of the blood degree of Wolfe and Ward faulty, is unreliable, and made-up.
27 42

28
COMPLAINT
Case 3:17-cv-01149-BAS-KSC Document 1 Filed 06/08/17 PageID.43 Page 43 of 49

2 119. Plaintiffs have suffered and will continue to suffer irreparable harm

3 while the Trask descendants and others continue to reap the benefits of being San
4
Pasqual Indians. The income and land belong to Plaintiffs and the other federally
5

6 recognized true San Pasqual Indians.


7
VIII
8
9 SECOND CLAIM FOR RELIEF
VIOLATION OF CIVIL RIGHTS:
10
DENIAL OF EQUAL PROTECTION
11 (By all Plaintiffs against all Defendants.
12
DEFENDANTS DENIED PLAINTIFFS THE GUARANTEES OF THE
13 EQUAL PROTECTION CLAUSE OF THE UNITED STATES
14
CONSTITUTION WHEN THEY ENROLLED
NON~SAN PASQUAL INDIVIDUALS WHO DO NOT SATISFY
15 SAN Pasqual BAND OF MISSION INDIANS
16 ENROLLMENT CRITERIA
(By all Plaintiffs against all Defendants)
17

18 120. Plaintiffs refer to and reallege Paragraphs 1 through 119, inclusive, of


19
this Complaint, and incorporate the same by reference as though fully set forth at
20
21
length herein.

22 121 . An actual controversy exists by and between all Plaintiffs and the
23
Defendants concerning the unconstitutional enrollment of non-San Pasqual persons
24
25 into the San Pasqual Band of Mission
26
122. This controversy is the root of the illegal, unconstitutional, and
27 43

28

COMPLAINT
Case 3:17-cv-01149-BAS-KSC Document 1 Filed 06/08/17 PageID.44 Page 44 of 49

2 fraudulent actions taken by the Defendants against the Plaintiffs, all who carry at

3 least l/8th San Pasqual blood.


4
123. As the historical background of the San Pasqual Indians (cited in the
5
6 proceeding paragraphs and subsequent paragraphs) indicate, the Defendants
7
allowed a White settler named Frank Trask and his family, including his
8
9
descendants to squat on the San Pasqual land with impunity, resulting in the

10 diminution of the land for the Plaintiffs, in violation of Plaintiffs' statutory and
11
constitutional rights.
12

13 124. Defendants have either fraudulently, intentionally, or negligently


14
altered documents dealing with these non-San Pasqual individuals' ethnicity to the
15

16
detriment of Plaintiffs thereby denying Plaintiffs the guarantees of the Equal

I7 Protection Clause of the United States Constitution.


18
125 . Roswell Trask, Frank Trask's father, came out to California from Ohio
19
20 in the late l 860's. Frank Trasks grandparents and parents were from White
21
European ancestry. Records show that in 1903 Frank Trask married Leonore
22
23
LaChappa, of the Mesa Grande Tribe.

24 126. On April 6, 1910 Amos Frank received a letter from DOI, BIA
25
authorizing him to hire Frank Trask as a "caretaker." Frank Trask took the oath of
26
27 44

28

COMPLAINT
Case 3:17-cv-01149-BAS-KSC Document 1 Filed 06/08/17 PageID.45 Page 45 of 49

2 office on February 1, 1910 which was filed with BIA on March 8, 1910. On April

3 7, 1910 he was confirmed in the position of police private and judge. (Exhibit 8)
4
127. Frank Trask, a white man living at Mesa Grande with his wife
5
6 Leonora, who was registered as a Santa Ysabel Indian, was to be the caretaker for
7
the new reservation and to live in the house that was on the property. This
8
9 assignment was to last one year.

10 128. On May 20, 1909, Frank Trask applied for an allotment of land on the
11
Mesa Grande Reservation stating that his family consisted of himself, his wife, and
12
13 two minor children. The Assistant Commissioner wrote: "The office has no further
14
knowledge of when or upon what authority Frank Trask moved to the San Pasqual
15

16
reserve, but it is presumed that he was allowed to do so as he is an Indian and

17 has a San Pasqual wife by whom he has a family. [Emphasis added]. Contrary to
18
this "presumption" the documents and records show that Frank Trask has no Indian
19

20 blood what-so-ever and his wife Lenora Trask was a registered and enrolled Santa
21
Ysabel/Mesa Grande Indian. (Exhibit 7, Exhibit 18)
22
23 129. In 1916, the Defendants received numerous letters from true San

24 Pasqual Indians stating that Frank Trask was not an Indian; he was a White man.
25
These letters objected to Frank Trask living on the San Pasqual land when they
26
27 45

28
COMPLAINT
Case 3:17-cv-01149-BAS-KSC Document 1 Filed 06/08/17 PageID.46 Page 46 of 49

2 could not live on it. There is no record that the Defendants ever responded to these

3 letters or that they satisfied the requirements of 25 U.S.C. 175. (U.S. Attorneys to
4
represent Indians). (Exhibit 10)
5
6 130. In a letter from Frank Trask' s mother dated November 14, 1920, she
7
stated: "In reply to your letter asking information about my son [I] will say, first,
8

9 Frank Trask was not a San Pasqual Indian himself, nor were any of his immediate

10 ancestors. I am dark complexioned ... my father is English. Second, Frank was


11
born near Mesa Grande in San Diego Co., California. The first time he lived on
12

13 the Reservation was when he wrote me about nine ten years ago and told me he had
14
married an Indian woman on the Reservation" . (Exhibit 18, 19)
15

16
13 1. In a typed note at the top of a letter dated January 5, 191 7, E. B.

l7 Meritt, Assistant Commissioner, stated: "Authority for presuming that Mrs. Trask
18
is a San Pasqual Indian herself, and that she and her daughters are therefore entitled
19

20 to allotment there, is based upon Indian office letter as follows :" The subject of the
21
letter was a request that four families of San Pasqual Indians be allowed to move
22
23 onto the reservation. Although the letter questioned the status of Frank Trask, no

24 adverse action was taken by the Defendants. (Exhibit 20)


25
131. Frank Trask died in 1920 leaving a widow and two children. In a
26
27 46

28
COMPLAINT
Case 3:17-cv-01149-BAS-KSC Document 1 Filed 06/08/17 PageID.47 Page 47 of 49

2
letter dated March 15, 1920 the Superintendent wrote: " It would be hardly fair to

3 the Trask family to withhold allotment on the supposition that other San Pasqual
4
Indians may at some later time also desire allotments." The actions by the BIA
5

6 were taken upon erroneous and illegal suppositions that Frank Trask was a San
7
Pasqual Indian.
8
9
132. At the top of a memo from 1959, the June 30, 1924, Census of the San

I0 Pasqual Indians, L. Ellis, Superintendent quotes from a letter written by Frank


11
Trask's mother that was dated November 24, 1920. "In reply to your letter
12

13 asking information about my son will say, first, Frank Trask is not a San
14
Pasqual Indian himself, nor were any of his immediate ancestors. [Emphasis
15

16 added]. I am dark complexioned and believe my ancestors on my mother's side

17 were Indians, but do not know of which tribe. My father was English. (Exhibit
18
19)
19

20 133. In a letter from the Department of Interior, office of the Solicitor,


21
dated June 7, 1965, the Solicitor erroneously concluded that Frank Trask's
22

23 descendants [Mrs. Wolf and Mrs. Ward who are Lenora LaChappa Trask's

24 descendants] derived their Indian blood from both their mother and their father.
25
This conclusion is the result of convoluted interpretation of the language of the
26
27 47
28
COMPLAINT
Case 3:17-cv-01149-BAS-KSC Document 1 Filed 06/08/17 PageID.48 Page 48 of 49

2 statutes. The Solicitor stated: "It is our conclusion that a construction may be

3 placed on the language of the regulations governing the preparation of the


4
membership roll of the San Pasqual Band to hold that persons of Indian blood (not
5

6 San Pasqual blood, but just any Indian blood) who were recognized as Band
7
members when the basic roll of June 30, 20 I 0 was compiled, may be considered to
8
9 be of the blood of the San Pasqual Band. (Exhibit 21, 22)

10 134. This interpretation exceeds the Solicitor's authority, violates the


11
dictates of statutory construction, and violates Plaintiffs civil rights as Indians with
12

13 at least 1/8 San Pasqual blood. This "construction of the language" also violates
14
Plaintiffs' rights to Equal Protection of the law.
15

16
13 5. Although the words ''blood of the band" are not contained in the San

17 Pasqual Constitution or 25 C.F.R. 48, the BIA inserted the words "Blood of the
18
Band" in all clauses relating to membership in the San Pasqual Band. When
19

20 interpreting the statutory language as related to the Federal recognition of non-San


21
Pasqual individuals, the Bureau erroneously and intentionally interpreted the words
22
23 "Blood of the Band" only as degree of Indian blood (any Indian blood)rather than

24 Blood of the San Pasqual Band. Said interpretation has denied Plaintiffs Equal
25
Protection of the law and have caused Plaintiffs to suffer severe damages.
26
27 48
28

COMPLAINT
Case 3:17-cv-01149-BAS-KSC Document 1 Filed 06/08/17 PageID.49 Page 49 of 49

2
136. This "construction of the language" interpretation of the statute and

3 the BAND's constitution by the Solicitor of the Department of the Interior is


4
contrary to statutory language and exceeds the authority granted to him by the San
5

6 Pasqual Constitution and 25 C.F.R. 48 because: a) The term "Band" means the
7
San Pasqual Band of Mission Indians, [25 C.F.R.48.5], not blood of the band of
8

9
any Indians; b) 25 C.F.R.48.5 (a), (b), and ( c) identifies the persons to be

10 enrolled: I) those who are alive on January 1, 19594 ; ii) Members whose names
11
appear of the Band on the Census Roll, provided such descendants possess one-
12

13 eighth or more degree of Indian blood of the Band [By statute (25 CFR 48.2 (e)-
14
Band means San Pasqual Band of Mission Indians]; iii) Indians not include in (a)
15

16
or (b) who can prove they are 1/8 of more degree Indian blood of the San Pasqual

17 Band of Mission Indians, i.e. "BAND"; And iv) Section 48.5(e) states: "If an
18
Indian who applies for enrollment under the provisions of paragraphs (a), (b), or (
19

20 c) of this section has received in his or own right an allotment or is enrolled as a


21
member with some other tribe or band and has not relinquished such allotment or
22

23
enrollment prior to January 1. 1950, such person shall not be enrolled." None of the

24
4
" [P]rovided he or she is not an enrolled member of some other tribe or band." The 1933
25 California base roll of Indians contains Frank Trask' s wife, Lenora LaChappa [Trask], born in
Mesa Grande in 1881 was enrolled in the Mesa Grande Indian Band. She was the daughter of
26
Feliciana Leonora App #2478 (Exhibit 7)
27 49

28

COMPLAINT