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BUREAU OF INDIAN AFFAIRS
PACIFIC REGIONAL OFFICE
2800 COTTAGE WAY
SACRAMENTO, CA 95825
Ronald D. Allen Jr., Kelly L. ) IN THE MATTER OF:
Peterman, Charles Allen Jr., )
Nikki Harris, Mikki Graber, ) APPEAL OF FEBRUARY 1, 2012
Vikki Oxley, Shawn Thomas ) DECISION OF EXECUTIVE
Rogers, Jeanne Durso, Daniel ) COMMITTEE OF P ALA BAND
Durso, Robert J. Morris, Misty ) OF MISSION INDIANS TO
Morris, Ray Morris, Monique ) DISENROLL APPELLANTS
Early, Melissa Hunter and Mary )
EXECUTIVE COMMITTEE, )
Pala Band of Mission Indians, ) May 10, 2012
SUPPLEMENTAL ARGUMENT ON FIDUCIARY DUTY OF THE
ASSISTANT SECRETARY OF INTERIOR - INDIAN AFFAIRS TO INSURE
COMPLIANCE WITH TRIBE'S FEDERALLY APPROVED CONSTITUTION
Appellants provide additional positions on the illegality of their disenroll
ment on February 1, 2012 by actions taken by the Executive Committee of the Pala
Band of Mission Indians ("Tribe") during the pendency of their administrative
appeals filed with the Regional Director, Pacific Regional Office, Bureau of Indian
Appellants named above want to do everything possible to help the BIA find
a resolution so the Tribe will agree that there is no legitimate evidence upon which
to disenroll them. This mass disenrollment is truly an injustice on an International
Human Rights level that Appellants firmly believe can be corrected through
permissible authority held by the United States of America, the federal fiduciary
ultimately responsible for insuring that Tribes follow their federally approved
A. THE EXISTENCE OF A FEDERALLY APPROVED
CONSTITUTION ESTABLISHES JUSTIFICATION
FOR BIA INTERVENTION WITHIN THE FACTS OF
THIS PENDING APPEAL.
On April 18, 2012, the United States Department of Interior, Interior Board
of Indian Appeals ("IBIA"), decided Coyote Valley Band of Pomo Indians, et al., v.
Acting Pacific Regional Director, BIA, 54 IBIA 320 (2012):
This appeal involves a tribal governance dispute within the
Coyote Valley Band of Pomo Indians (Tribe) and, more
specifically, decisions issued by the Bureau of Indian Affairs
(BIA) taking sides in the tribal dispute. The BIA decisions were
issued in response to a demand from one faction of the Tribe that
BIA recognize the ouster of certain incumbent tribal officials. At
no time has BIA identified, as justification for taking sides in the
tribal dispute, any required BIA action that prompted BIA's
intervention and adjudication of issues of tribal law at the time of
BIA's decisions. (Footnote omitted).
Appellants' firmly posit that the rationale applied by the IBIA in Coyote
Valley Band applies here in but in the opposite direction:
We vacate BIA's decisions because in issuing them, BIA acted
contrary to well established precedent forbidding such intrusion
into tribal affairs in the absence of required Federal action. It is
well within BIA's authority to monitor tribal governance disputes,
gather information, solicit input from tribal factions, provide
neutral assistance to facilitate resolution of a dispute if desired by
the parties, and be prepared to issue a decision when some
Federal action is required. But, as relevant to this case, BIA must
refrain from taking sides and from issuing a decision, i.e.,
intervening in the dispute, until some specific Federal action by
BIA is both necessary and requires that BIA identifY a tribal
Based upon the language employed by the IBIA noted above, Appellants contend
that the BIA has a fiduciary duty to intervene on their behalf when the plain terms
of their Tribe's Constitution are openly violated by the Executive Committee and
such patent violations caused their disenrollment on February 1, 2012.
When a tribe is involved in an "internal governance dispute", and BIA takes
sides in that dispute, the BIA is intruding in the tribe's internal affairs. The
disenrollment of 162 members of the Tribe descending from Margarita Brittain is
an "internal governance dispute" of the highest order. An illegal disenrollment that
ignores a 1989 Final Decision by the Secretary of the Interior - Indian Mfairs is an
"internal governance dispute" when a large number of tribal voters are unjustly
excluded from the Tribe's political processes. Intrusion by the BIA into the
substance of this disenrollment by telling the Tribe the evidence shows violations of
. its Constitution is precisely the type of scenario that necessitates a decision by BIA
recognizing the illegality of the Tribe's action taken toward Appellants. It makes
absolutely no difference that Coyote Valley Band was an internal dispute over
governance of the Band and this appeal is based on violations of the Tribe's
Constitution that led to the unjust denial of Appellants' right to remain on the
When a designated representative of the Secretary of Interior acted to
approve the Tribe's governing document, that action imposed a lawful duty upon
the federal fiduciary to insure Tribal actions are taken in accordance with its
provision. Approval of a governing document by the federal fiduciary is not an
action taken in the abstract. Otherwise, such federal approval is meaningless.
When, as discussed below and on appeal, a tribal member notifies the BIA that
their tribe is violating the federally approved constitution, any action taken by the
fiduciary to demand corrective action on the part of the tribe, the ward, is not acting
in the abstract. Id., p. 326.
In fact, Appellants' argue that such an "intrusion" is legally mandated in
these specific factual circumstances and to not so act constitutes a breach of the
federal fiduciary's duty to them because they were illegally disenrolled. These
violations were the proximate cause of their elimination from the Tribe's
B. Invocation of Departmental ICRA Policy in regards to
Mass Disenrollments at Pala Band of Mission Indians is
an Obligation of the Federal Fiduciary.
Appellants' disenrollments by the Tribe were based on changes to the full
blood Indian status of Margarita Brittain, a common direct ancestor through whom
they trace their lineage. None of those 154 suffering the recent mass disenrollments
saw any enunciated basis for this lowering of full blood quantum status of their
ancestor. The Tribe has never bothered to give anyone an explanation on how it
arrived at its decision.
By letter, dated March 29, 2012, Robert H. Smith, Tribal Chairman, sent out
a letter to "All Adult Members of the Pala Band of Mission Indians" with pages of
documents that he alleged supported the mass disenrollments.
A copy of his letter
is attached to the Supplement. If the Tribe did indeed possess credible evidence
that Margarita Britten's Indian blood quantum status is less than full blood, it has
not submitted it to the Regional Director. Chairman Robert Smith has never said
why Appellants' bloodline was in question since this issue was finally decided over
23 years ago with his knowledge, participation and concurrence.
This failure of the Tribe to formally file its position on the disenrollment with
the Regional Director establishes egregious violations and continuing violations of
the Indian Civil Rights Act and provisions of the Constitution that the Regional
Director and Tribe contend are validly approved. If the Constitution is so validly
approved, then the fiduciary has a duty to inform the ward of the violations.
However, Appellants contend if you do the math from the from the time any
alleged changes were made to the original "Articles of Association" you will clearly
see no majority of the entire "General Council" ever voted. In other words, the
General Council meeting simply did not include all voting members of the General
Council. Therefore, no changes could possibly take place at such a meeting.
On May 17,1989 The Department of the Interior, BIA, rendered a "Final
Decision" holding that Margarita Britten was 4/4 degree Indian blood. Appellants
have emphasized that the Tribe's Constitution has a "savings clause" which reads at
Article VII: "All enactments of the "The Pala Band shall provide all persons with
due process and equal protection of the law required by the Indian Civil Rights Act
(25 U.s.C. Section 1302)". Appellants strongly believe that the FederallCRA serves
as a completely permissible "hook" for the BIA to force the Tribe to place them back
on tribal rolls.
Appellants urge the Secretary of Interior to issue notice to the Tribe that
the Enrollment Ordinance is void of Due Process as defined under the ICRA and
the BIA still recognizes them as Tribal members because they were denied their
right to Due Process in these circumstances.
Further, there are clear violations of the ICRA in these factual
circumstances. The letter Chairman Smith sent Appellants in October 2011
I His letter and attached documents excluded numerous key documents proving full blood status of
Margarita Brittain in his attempt to perpetuate his fraudulent disenrollment actions that violate the
merely stated that their bloodline was in question and they were updating their
files. There was no warning that apprised anyone of any disenrollment
proceedings. The disenrollment letter the Tribe sent to them on February 1, 2012
was a blatant disregard of their civil rights, as guaranteed by the Tribe's
Constitution and the Articles of Association, because it offered no Due Process or
Equal Protection Guarantees to them. As we stressed above, there was no
justification for the removal of Appellants from the rolls. They were only told to
send an appeal to Amy Dutschke, Director, Pacific Region, Sacramento, California.
It is obvious from the entire administrative record in this matter that the
Tribe intends to ignore any well-articulated "recommendation" in Appellants favor
rendered by the Regional Director. This constitutes outright and undeniable proof
of ICRA violations, i.e., Bill of Attainder and Ex Post Facto provisions, and a
violation of the Savings CIa use provisions of the federally approved Constitution.
On February 24, 2012, Director Dutschke gave a recommendation in favor for
the original 8 members of Pala who were disenrolled in June 2011. The letter states:
"Our recommendation to the Band is to change its disenrollment decision of the
eight individuals and to have them remain on the tribal membership roll of the Pala
Band of Mission Indians." Chairman Robert Smith is not adhering to the
recommendation of the BIA. This leads to the question: "Why does the Tribe direct
Appellants' appeal to the Regional Director if they are going to disregard the
Further, the rogue Executive Committee has also disregarded the Savings
Clause in the Constitution and its federally mandated ICRA provision. Over 23
years have passed since the BIA made its Final Decision resolving this matter of
blood quantum once and for all. In effect, the actions taken against Appellants by
Smith and the Executive Committee force them into a "double jeopardy" Ex Post
Facto situation. Without a doubt, this is a malicious attack on the federally
protected civil rights that must not be overlooked or ignored by Pala or the BIA.
Appellants believe the Secretary of Interior and the Assistant Secretary of Interior
- Indian Mfairs have a fiduciary duty to affirmatively take action to inform Robert
Smith that you will not accede to the mass disenrollments and if the 162 members
are not officially acknowledged as being placed back on the rolls and lost benefits
returned to them or drastic action will be taken against the Tribe.
Appellants have stressed in the administrative record now before Regional
Director Dutschke that the rogue Executive Committee has "zero" evidence
conclusively showing Margarita Britten is not full blood. In fact, the BIA proved
otherwise in 1989 and after intensive review of historical documentation. The
Executive Committee failed to send anything to the BIA, Tribal Council, or their
members proving Margarita is not full blood.
No list of the disenrolled has been sent out for review to determine if all
descendants of Ms. Britten were treated equally. From the glaring series of illegal
actions taken by the Executive Committee within these facts, Appellants believe
that Smith discriminated against them by not disenrolling all descendants. If true,
this would constitute violation of the Equal Protection Clause of the ICRA.
Objective third-parties who have reviewed Appellants' case agree with
Appellants' position that the Enrollment Ordinance violates the ICRA because it
has no Due Process provisions. Specifically, these third-parties have noted that the
tribal rules under which were disenrolled deprived Appellants of their guaranteed
Right to Due Process. Anyone who is familiar with the manner in which the
Executive Committee went about its shameless and illegal disenrollment actions
must agree that the ICRA has been violated by them.
The BIA has an obligation to decline to recognize the result of a tribal
election which was "tainted" by violations of the ICRA. See, e.g. Naylor v.
Sacramento Area Director, 23 IBIA 76 (1992); Greendeer v. Minneapolis Area
Director, 22 IBIA 91 (1992); United Keetowah Band of Cherokee Indians v.
Muskogee Area Director, 22 IBIA 75 (1992). In the case of tribal election disputes,
the BIA rule is the following: "the fact that BIA bears this responsibility, does not
relieve tribal members of their obligation to exhaust their tribal remedies before
seeking relief from the BIA", Mosay v. Minneapolis Area Director, 27 IBIA 126
The basis for the BIA's refusal to recognize those elected in arguably
defective tribal elections is firmly grounded in the ICRA. In these situations, the
agency superintendent informs the tribe a member claims they were not allowed to
vote and this violated their rights under the ICRA. Until proof that the situation
has been resolved by the completion of a properly conducted election, the
superintendent withholds recognition of those elected in the defective election. This
is an accepted approach frequently applied by the BIA agencies in California.
Because Appellants' believe this is an accepted Departmental Policy, it is
even more justifiable that the BIA extend this Policy to situations where members'
guaranteed rights to Due Process and Equal Protection are denied by their own
government acting in violation of the ICRA in disenrollment situations. The right to
maintain one's membership in their tribe is greater in weight or, at least, on equal
footing with ICRA protected voting rights of tribal members. When the Executive
Committee booted out its members for no legitimate reason, this destroyed the 1989
federal administrative Final Decision as if it never existed. Further, these
abhorrent actions violate the base line standards, the 1913 Allotment Roll, for
membership in the Tribe all without cause.
It is Appellants' position that if the BIA has refused to recognize the results
of tribal elections tainted with ICRA violations, it is no far stretch to apply this
policy to disenrollments "tainted" with ICRA violations. The fact that the
Appellants above named have been summarily disenrolled on February 1,2012 by
the Executive Committee who cited no basis for their disenrollment prove
violations of the ICRA that have tainted this entire process. Technically,
Appellants voting rights are violated as well.
Appellants urge Director Dutschke to state in her "recommendation" letter in
their favor to the Tribe regarding the Appellants' submissions that the BIA
recognizes these individuals as members of the Pala Band of Mission Indians due to
ICRA violations since the Enrollment Ordinance lacks Due Process provisions. She
also needs to let the Executive Committee know that they are openly violating the
federally approved Constitution and the Civil Rights of the disenrolled members by
not offering these victims Due Process in their Enrollment Ordinance. It should be
within Departmental Policy to then inform the Executive Committee that failure to
place everyone back on the roll will risk withdrawal of its Constitution and federal
funding will be withheld from the Pala as a sanction to discourage further civil
Robert Smith and the Executive Committee feel they are above the law to
. the point where they all believe they can violate the plain provisions of the Tribe's
federally approved Constitution without suffering any consequences. Appellants
urge the BIA to strongly assess Appellants' position that it is acceptable for the
Department of the Interior to admonish their Executive Committee of its open
violations of their ICRA rights as guaranteed under their federally approved
Constitution and Articles of Association that the United States of America is
ultimately responsible for enforcing compliance.
The Department of Interior must stand firm with Appellants against the Pala
Executive Committee who feels it is beyond the reach oflaw and morality where it
does not have to respect the plain provisions of its own federally approved
In closing, Chairman Smith and the Executive Committee are violating
Appellants' I CRA rights by not recognizing the Savings Clause in the Constitution
and disenrolling them without legitimate facts or reasons, all in blatant disregard to
their human rights. Intrusion by the BIA into this debacle is justified as in the
execution of the Federal Fiduciary's duty to correct violations by the Tribe of the
federally approved Constitution.
RESPECTFULLY SUBMITTED this 10
day of May, 2012.
LAW OFFI9:ES ..9F DENNIS G. CHAPPABITTY
Dennis G. Chappabitty, OBA #1617
P.O. Box 2050
Elk Grove, CA 95759
(916) 682-0575 (voice/fax)
Certificate of Service
I hereby certify that a true and accurate copy of the foregoing was mailed by United
States Postal Service First Class Mail this 10
day of May, 2012 to:
Amy Dutschke (Fax)
Pacific Regional Office
Bureau of Indian Mfairs
2800 Cottage Way
Sacramento, CA 95825
Acting Assistant Secretary - Indian Affairs
Bureau of Indian Mfairs
1849 C Street, NW
Washington, D.C. 20240
Mike Black, Director
United States Department of Interior
Bureau of Indian Mfairs
1849 C Street, NW
Washington, D. C. 20240
Southern California Agency
Bureau of Indian Mfairs
1451 Research Park Drive
Riverside, California 92507
James W. Porter, Attorney-Advisor, Office of Solicitor (Email only)
Jeffrey C. Nelson, Assistant Solicitor, Branch of General Indian Legal Activities
Teresa Villa, Secretary
Pala Band of Mission Indians
PMB 50, 35008 Pala Temecula Road
Pala, CA 92059
B Y : ~ ( ~
PALA BAND OF rvnssnoN INDIANS
35008 Paia Temecula Rd.
Pala, CA 92059
TO: ALL ADULT MEMBERS OF, THE PALA BAND OF MISSION INDIANS
FROM: . Robert H. Smith
Enclosed please find documentation that the Executive Council used to detennine the disenroHment of
previous memi:>ers of the Pala Band of Mission Indians. The Bureau of Indian Affairs (BIA) used One (1)
testimony but the Executive Council looked at individual history cards, a variety of documents and
testimonies to come to our conclusion for the disenroBment.
OUf facts on the individual in question were, Margarita Brittian. Some claim she was 4/4 of Cupa Blood,
whicbcame up in question in 1989. There has always been some suspension of Margarita Brittian's 4/4
Cupeuo Blood when records show her father as "unJ01ovm", see documents enclosed as fact, along with
signed testimony by her children and relatives. This was the basis of the Executive Councils decision to
In the Constitution of the PaJa Band of Mission Indians, it gives full power for the Executive Council to
enrol! or individuals if they do not meet the Paia Blood Quantum which is 1/16 direct lineal
Please feel free to share this information with your children and loved ones if they were affected by this
decision. As a reminder fOf an individual to be 4/4 both parents need to be specIfied as 414 Blood
and as the records show, the father of Margarita Brittian is unknown.
Thank you for your attentiveness to this infonnation and hopefully this clears up numerous questions and
false information that has been delivered to many of you and you can see the proof in the enclosed
ROOert H. Smith
Band of Mission Indians
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