No. 17-17463 UNITED STATES COURT OF APPEALS FOR THE … · “Indian tribe” as defined in 25 U.S.C. § 5129 (“§ 5129”) and 25 C.F.R. § 81.1(w) (“§ 81.1(w)”) and, therefore,

No. 17-17463

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANDREW ALLEN, et al.

Plaintiffs-Appellants,

v.

UNITED STATES, et al.,

Defendants-Appellees.

_____________________________________________

On Appeal from the United States District Court

For the Northern District of California, San Francisco

Case No. 3:16-cv-04403-WHA

The Honorable William Alsup

__________________________________________________________________

APPELLANTS’ OPENING BRIEF

___________________________________________________________________

Lester J. Marston

RAPPORT AND MARSTON

405 West Perkins Street

Ukiah, California 95482

Tel. (707) 462-6846

Fax. (707) 462-4235

Attorney for Plaintiffs-Appellants

Case: 17-17463, 04/20/2018, ID: 10845749, DktEntry: 9, Page 1 of 51

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TABLE OF CONTENTS

INTRODUCTION ..................................................................................................... 1

JURISDICTIONAL STATEMENT .......................................................................... 4

STATEMENT OF ISSUES ....................................................................................... 6

STATEMENT OF THE CASE .................................................................................. 7

SUMMARY OF ARGUMENT ...............................................................................10

STANDARD OF REVIEW .....................................................................................12

ARGUMENT ...........................................................................................................12

I. THE REQUIREMENTS FOR ORGANIZING A HALF BLOOD INDIAN

COMMUNITY TRIBAL GOVERNMENT UNDER THE IRA AND THE

SETTLEMENT AGREEMENT ARE SET FORTH IN 25 U.S.C. § 5129

AND 25 C.F.R. § 81.1. ..................................................................................12

II. THE CONDUCT OF THE FEDERAL OFFICIALS IN THIS CASE

MUST BE JUDGED BY THE HIGHEST FIDUCIARY STANDARDS. ...15

III. ANY DOUBTS OR AMBIGUITIES IN THE IRA OR THE

SETTLEMENT AGREEMENT MUST BE CONSTRUED BY THIS

COURT IN FAVOR OF THE INDIANS. ....................................................17

IV. THE INDIANS MEET ALL OF THE REQUIREMENTS UNDER THE

IRA AND THE REGULATIONS FOR ORGANIZING A HALF BLOOD

INDIAN COMMUNITY TRIBAL GOVERNMENT. .................................19

V. THE REGIONAL DIRECTOR VIOLATED BOTH THE

SETTLEMENT AGREEMENT AND THE IRA BY REFUSING TO CALL

AND CONDUCT AN IRA ELECTION FOR THE INDIANS THAT

WOULD ALLOW THEM TO FORM A HALF BLOOD INDIAN

COMMUNITY TRIBAL GOVERNMENT..................................................22

CONCLUSION ........................................................................................................32

ADDENDUM ..........................................................................................................35


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TABLE OF AUTHORITIES

Federal Cases

Alaska Pacific Fisheries Co. v. United States, 248 U.S. 78 (1918) ........................17

Andrew Allen, et al. v. United States of America, et al., United States Court of

Appeals for the Ninth Circuit, No. 17-17463 ......................................................... 3

Andrew Allen, et al. v. United States of America, et al., United States District Court

for the Northern District of California, Case No. 3:16-cv-04403-WHA ............... 3

Artichoke Joe’s Cal. Grand Casino v. Norton, 353 F.3d 712 (9th Cir. 2003) . 12, 19

Branch Banking & Tr. Co. v. D.M.S.I., LLC, 871 F.3d 751 (9th Cir. 2017) ...........12

Carcieri v. Salazar, 555 U.S. 379 (2009) ................................................................13

Cherokee Nation v. Georgia, 30 U.S. 1 (1831) .......................................................15

Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984) .....................................18

County of Yakima v. Confederated Tribes and Bands of the Yakima Indian Nation,

502 U.S. 251 (1992) ..............................................................................................17

Coyote Valley Band of Pomo Indians v. United States, 639 F. Supp. 165 (E.D. Cal.

1986) .............................................................................................................. 13, 18

Donald Allen, et al. v. United States of America, et al., United States District Court

for the Northern District of California, Case No. 11-cv-05069-WHA .................. 2

Donald Allen, et al. v. United States, et al., United States Court of Appeals for the

Ninth Circuit, No. 12-16573 ................................................................................... 2

Guatay Christian Fellowship v. County of San Diego, 670 F.3d 957 (9th Cir. 2011)

...............................................................................................................................12

Lane v. Pueblo of Santa Rosa, 249 U.S. 110 (1919) ...............................................17

McKay v. Kalyton, 204 U.S. 458 (1907) ..................................................................15

McNabb v. Bowen, 829 F.2d 787 (9th Cir. 1987) ....................................................17

Minnesota v. Hitchcock, 185 U.S. 373 (1902) .........................................................15

Minnesota v. United States, 305 U.S. 382 (1939) ...................................................15

Montana v. Blackfeet Tribe, 471 U.S. 759 (1985) ............................................ 17, 26

Morton v. Ruiz, 415 U.S. 199 (1974) ................................................................ 30, 31

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S.

29 (1983) ...............................................................................................................30

Navajo Tribe of Indians v. United States, 624 F.2d 981 (Ct. Cl. 1980) ..................16

Pyramid Lake Paiute Tribe of Indians v. Morton, 354 F.Supp. 252 (D.D.C.1972) 17


iii

Seminole Nation v. United States, 316 U.S. 286 (1942) ..........................................15

Serrato v. Clark, 486 F. 3d 560 (9th Cir. 2007) ......................................................31

Smith v. United States, 515 F. Supp. 56 (N.D. Cal. 1978) .......................................17

Travelers Prop. Cas. Co. of Am. v. Conoco Phillips Co., 546 F.3d 1142 (9th Cir.

2008) .....................................................................................................................12

United States v. Candelaria, 271 U.S. 432 (1926) ..................................................15

United States v. Kagama,118 U.S. 375 (1886) ........................................................15

United States v. Larionoff, 431 U.S. 864 (1977) .....................................................18

United States v. Mason, 412 U.S. 391 (1973) .................................................. 15, 17

United States v. Mitchell, 463 U.S. 206 (1983) .......................................................15

United States v. Shoshone Tribe, 304 U.S. 111 (1938) ...........................................15

White v. Califano, 437 F. Supp. 543 (D.S.D. 1977) ................................................17

United States Codes

25 U.S.C. § 5123 .............................................................................................. passim

25 U.S.C. § 5129 .............................................................................................. passim

28 U.S.C. § 1291 ........................................................................................................ 5

28 U.S.C. § 1331 ........................................................................................................ 5

28 U.S.C. § 1361 ........................................................................................................ 5

5 U.S.C. § 552-553........................................................................................ 3, 26, 30

Regulations

25 C.F.R. § 81.5 ................................................................................................ 14, 26

25 C.F.R. § 83.2 .......................................................................................................28

25 C.F.R. § 83.3 ...................................................................................... 6, 11, 12, 28

25 C.F.R. § 83.8 ......................................................................................................... 9

25 C.F.R. Part 81 .............................................................................................. passim

25 C.F.R. Part 83 ........................................................................................... 2, 28, 29

Other Authorities

Restatement (Second) of Contracts, §20, § 77 and §§ 159-164 (1981)...................32

Walter Rosales, et al. v. Sacramento Area Director, Bureau of Indian Affairs, 34

IBIA 50, 50-51 (07/29/1999) ................................................................................25


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INTRODUCTION

The Indian Reorganization Act, 25 U.S.C. § 5123 and § 51291 (collectively

the “IRA”) and the regulations promulgated by the Secretary of the Interior

(“Secretary”) to implement the IRA, 25 C.F.R. Part 81 (“Regulations”),2 allow

American Indians possessing one-half (1/2) or more Indian blood who reside on an

Indian Reservation established for them, to organize a tribal government by

petitioning the Secretary to call and conduct an election (“IRA Election”) allowing

the half blood Indians to vote on adopting a written constitution to organize a tribal

government. Under the IRA, if the half blood Indians vote to approve the

constitution, the Secretary must recognize the tribal government formed under that

constitution, and recognize the government-to-government relationship between

the Indians and the United States.

The Plaintiff-Appellants are eighteen (18) Indians who possess one-half

(1/2) or more Indian blood (the “Indians”) and who reside on the Pinoleville Indian

Rancheria (“Reservation”) that was established for their benefit. The Indians

petitioned the Secretary to call an IRA election for them. The Secretary refused

1 25 U.S.C. § 5123 (formally 25 U.S.C. § 476) and 25 U.S.C. § 5129 (formally 25

U.S.C. § 479). 2 25 C.F.R. Part 81 were the regulations that were in effect at the time the Parties

entered into the Settlement Agreement that is the subject of this appeal. The

Settlement Agreement states that it will be governed by those regulations that are

in effect at the time the Settlement Agreement was entered into by the Parties.

Therefore, all references to the “Regulations” in this brief are to 25 C.F.R. Part 81

that were in effect on January 20, 2015.


2

and the Indians filed suit seeking an order from the United States District Court for

the Northern District of California (“District Court”) directing the Secretary to call

an IRA election for the Indians. Donald Allen, et al. v. United States of America, et

al., United States District Court for the Northern District of California, Case No.

11-cv-05069-WHA (“Allen I”). The District Court ruled against the Indians and the

Indians appealed that decision to this Court. Donald Allen, et al. v. United States,

et al., United States Court of Appeals for the Ninth Circuit, No. 12-16573 (“Appeal

I”).

In Appeal I, after oral argument before this Court, the Indians and the

defendants/appellees (“Federal Officials”) entered into a settlement agreement

(“Settlement Agreement”). ER 74-89. Under the Settlement Agreement, the

Indians and Federal Officials (collectively the “Parties”) agreed on the documents

and criteria that the Indians would have to submit to demonstrate that they are an

“Indian tribe” as defined in 25 U.S.C. § 5129 (“§ 5129”) and 25 C.F.R. § 81.1(w)

(“§ 81.1(w)”) and, therefore, eligible for an IRA Election. The Indians submitted

all of the documentation necessary under the Settlement Agreement to prove that

they met the criteria set forth in the IRA, yet the Regional Director refused to call

the election. Relying on criteria set forth in the Bureau of Indian Affairs (“BIA”)

acknowledgment regulations (“Acknowledgment Regulations”), 25 C.F.R. Part 83,

the Regional Director found the Indians were a “splinter group” of the Pinoleville


3

Pomo Nation (“Nation”) and denied the Indians request for an IRA Election,

(“Decision”). ER 23.

The Acknowledgment Regulations, however, do not apply to requests for an

IRA Election and were not among the criteria the Indians were required to meet

under the Settlement Agreement. By using the Acknowledgment Regulations

criteria to determine the Indians eligibility for an IRA Election, the Regional

Director breached the Settlement Agreement by adding a new criteria to the IRA

Election process never contemplated by Congress and without going through

formal rulemaking under the Administrative Procedure Act, 5 U.S.C. § 552-553.

The Indians then sued the Federal Officials yet again in the District Court

seeking an order from the Court directing the Regional Director for the Pacific

Region of the BIA (“Regional Director”) to call an IRA Election. Andrew Allen, et

al. v. United States of America, et al., United States District Court for the Northern

District of California, Case No. 3:16-cv-04403-WHA. (“Allen II”). Without

addressing the Indians central argument, that the Regional Director’s Decision

relying on criteria from the BIA’s Acknowledgment Regulations to determine the

Indians eligibility for an IRA Election violated the Settlement Agreement, the

District Court upheld the Decision. This appeal then followed. Andrew Allen, et al.

v. United States of America, et al., United States Court of Appeals for the Ninth

Circuit, No. 17-17463. (“Appeal II”).


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This is a simple case of the Federal Officials “speaking with a forked-

tongue.” They promised the Indians one thing in the Settlement Agreement and

then broke their word by doing another. In the Settlement Agreement, the Parties

agreed that the only criteria the Indians would have to meet to determine their

eligibility for an IRA Election was the criteria established by Congress in § 5129

and by the Secretary in § 81.1(w). Instead of using that criteria, the Regional

Director breached the Settlement Agreement and used the “splinter group” criteria

in the Acknowledgment Regulations.

Simply put, the Federal Officials lied to the Indians. This Court should not

let them get away with their lie. It should hold them to their word as set forth in the

Settlement Agreement.

Based on the criteria set forth in § 5129, § 81.1(w) and the Settlement

Agreement, the Indians are eligible for an IRA Election and this Court should

direct the Regional Director to call and conduct an IRA Election for their benefit.

JURISDICTIONAL STATEMENT

1. The District Court had jurisdiction over the claims of the Indians,

Donald Allen, Richard Allen, Robert Allen, Allan Crabtree, Barbara Crabtree,

Lynn Crabtree, Venus Hoaglen, Sharon Allen-Ibarra, Alexander Jackson, Daniel

Jackson, Jessica Jackson, Martha Knight, Margie McGee, Timothy McGee,


5

Michael Tooley, Yolanda Allen Tadeo, and Clarence Wright, based upon the

following:

(a) 28 U.S.C. § 1331, in that the Indians’ claims arise under the

Constitution and laws of the United States, 25 U.S.C. § 5123, § 5129 and 25 C.F.R.

§ Part 81, and

(b) 28 U.S.C. § 1361, in that the Indians seek to compel officers and

employees of the United States and its agencies to perform duties owed to the

Indians.

2. The Court of Appeals has jurisdiction over this appeal based upon:

(a) 28 U.S.C. § 1291, in that the Indians are appealing a final judgment of

the District Court;

(b) The final judgment (“Judgment”) was entered by the District Court on

November 27, 2017;

(c) The Indians filed a notice of appeal on December 11, 2017. Because

the Federal Officials: the United States of America, Secretary of the Interior, Ryan

Zinke, and BIA Regional Director, Amy Dutschke, are, respectively, the

government of the United States, and are officials of the United States who are

being sued in their official capacity, the filing of the notice of appeal within sixty

(60) days of the entry of the Judgment was timely; and


6

(d) The Judgment, granting the Federal Officials’ motion for summary

judgment and denying the Indians’ motion for summary judgment, constitutes a

final judgment that disposed of all of the claims of all of the Parties.

STATEMENT OF ISSUES

1. Does 25 U.S.C. § 5129 and 25 C.F.R. § 81.1(w) establish the criteria

that the Indians have to meet in order to be eligible for an IRA Election?

2. Did the Settlement Agreement entered into between the Parties limit

the IRA Election eligibility criteria for the Indians to organize as a one-half blood

Indian community to the three (3) criteria set forth in 25 U.S.C. § 5129 and 25

C.F.R. § 81.1(w)?

3. In carrying out their duties under the IRA and the Settlement

Agreement are the Federal Officials held to a high fiduciary standard?

4. Can the Regional Director use the eligibility criteria for determining

whether an Indian group exists as an Indian tribe, as set forth in the

Acknowledgment Regulations, 25 C.F.R. § 83.3(d), to determine whether the

Indians were eligible for an IRA Election?

5. Did the Federal Officials violate the IRA, breach the Settlement

Agreement and breach the Federal Officials fiduciary obligation owed to the

Indians under the IRA and Settlement Agreement by denying the Indians an IRA


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Election based on the Regional Director’s determination that they were a “splinter

group” under the Acknowledgment Regulations?

STATEMENT OF THE CASE

In order to establish their eligibility to organize as a one-half (1/2) blood

Indian community tribal government under the provisions of the IRA, 25 U.S.C. §

5123, the Indians were required to provide evidence to the Regional Director that

they met the three criteria established in 25 U.S.C. § 5129 and 25 C.F.R. §

81.1(w)(2) (“Three Criteria”): (1) that they possess one-half (1/2) or more Indian

blood; (2) that they reside on an Indian reservation and (3) that the reservation that

they reside on was established for them or their ancestors.

In order to determine whether they met the Three Criteria, the Indians

entered into a Settlement Agreement on January 20, 2015, with the Federal

Officials in Appeal I. In the Settlement Agreement, the Parties agreed upon the

documentation (“Documentation”) that the Regional Director would accept to

verify that the Indians met the eligibility criteria. The Parties also agreed that the

eligibility criteria would be the Three Criteria. ER 74-89.

Pursuant to Paragraph 14 of the Settlement Agreement, on April 16, 2015

the Indians submitted a letter (“Letter”) and the Documentation to the Regional

Director requesting a determination that the Indians were eligible to petition the

Secretary, pursuant to 25 U.S.C. § 5123, for an election to vote on a proposed


8

constitution to organize a half blood Indian community tribal government. ER 67-

71.

On October 21, 2015, in response to the comments received by the Regional

Director to the May 10, 2015, Ukiah Daily Journal Notice and the May 14, 2015,

Federal Register Notice, the Indians submitted a letter, with attached exhibits, to

the Regional Director in support of their request for a determination that they were

eligible to organize a half-blood Indian community tribal government under the

IRA. ER

On November 9, 2015, pursuant to Paragraph 17 of the Settlement

Agreement, the Regional Director issued a “Verified Member List” verifying that

the persons on the list possessed at least one-half degree of Indian blood, resided

on the Reservation and were not members of any other Indian tribe. ER 29-31.

On April 1, 2016, the Regional Director rendered a final agency decision

(“Decision”) ruling that the Indians were not eligible for an election to vote on a

constitution to organize a tribal government under the IRA. The basis of the

Regional Director’s Decision was that: (1) the Indians were a “splinter group” or

“subset of the Indians for whom the Pinoleville Rancheria was set aside,” (2) that

only one tribe, the first tribe to organize under the IRA, can occupy a reservation,

“only-one-tribe-per-reservation” criteria, and since the Nation had already

organized under the IRA, the Indians were precluded from doing so, and (3)


9

therefore, that the “Department [of the Interior] does not interpret the Indian

Reorganization Act as permitting splinter groups or factions of a tribe to set up

independent tribal governments.” ER 19-28.

The term “splinter group” is found in the Secretary’s Acknowledgment

Regulations, 25 C.F.R. § 83.8(d), which states in pertinent part: “Splinter groups,

political factions, communities or groups of any character that separate from the

main body of a currently acknowledged tribe may not be acknowledged under

these regulations.”

The sole authority, however, that the Regional Director relied upon in

support of her Decision was a letter dated January 12, 1995, from the Assistant

Secretary for Indian Affairs, Ada Deer, to Attorney Nancy Ranch, relating to

members of Captain Grande Band of Mission Indians, who were seeking to

organize as a “tribe now under Federal jurisdiction,” and not as a half blood Indian

community under the IRA. ER 24-28.

The Indians then filed suit on August 16, 2016, in the District Court seeking

an order from the District Court directing the Regional Director to call and conduct

an IRA Election for the Indians.

On July 14, 2017, the Indians filed its motion for summary judgment, based

upon an administrative record filed by the Federal Officials on July 7, 2017.


10

On August 11, 2017, the Federal Officials filed their motion for summary

judgment.

On August 30, 2017, the Indians filed their reply to the Federal Officials

response to the Indians motion for summary judgment and their response to the

Federal Officials motion for summary judgment.

On September 12, 2017, the Federal Officials filed their reply, to the Indians

response to the Federal Officials motion for summary judgment.

On October 2, 2017, the Honorable William Alsup, United States District

Court Judge, issued an order finding that Allen II was a related case to Allen I and

ordering Allen II reassigned to Judge Alsup.

On November 16, 2017, Judge Alsup issued an Order denying plaintiffs’

motion for summary judgment and granting defendants’ motion for summary

judgment. ER 2-14.

On November 27, 2017, Judge Alsup entered a final Judgment in this case,

pursuant to the District Court’s November 16, 2017, Order. ER 1.

SUMMARY OF ARGUMENT

In this Opening Brief, the Indians will make the following arguments:

1. The Indian Reorganization Act, 25 U.S.C. § 5123 and § 5129, and the

Regulations, 25 C.F.R. § 81.1(i) and 81.1(w), establish Three Criteria that a group

of Indians must meet in order to be eligible to vote on adopting a written


11

constitution to organize a tribal government, pursuant to an election called and

conducted by the Secretary under 25 U.S.C. § 5123.

2. The Parties entered into the Settlement Agreement. Under the

Settlement Agreement, the Parties agreed: (1) that the criteria set forth in the IRA

and Regulations would be the criteria used by the Regional Director to determine

the Indians’ eligibility for an IRA Election; (2) on the Documentation the Indians

would have to submit to the Regional Director to prove they met the eligibility

criteria; and (3) on a process for the Indians to submit the Documentation to the

Regional Director for a determination as to whether they were eligible for an IRA

Election.

3. The Indians followed the process set forth in the Settlement

Agreement for submitting the Documentation and submitted Documentation

proving they met all Three Criteria set forth in the IRA and the Settlement

Agreement.

4. Rather than use the criteria set forth in the IRA and the Settlement

Agreement, the Regional Director used criteria set forth in the Secretary’s

Acknowledgment Regulations, specifically 25 C.F.R. § 83.3(d); to determine that

the Indians were a “splinter group” of the Nation and therefore, were not eligible

for an IRA Election.


12

5. The Regional Director’s use of § 83.3(d) to determine the Indians’

eligibility for an IRA Election violates the IRA, the Regulations and the Settlement

Agreement and is, therefore, void.

6. The Indians met the Three Criteria and are therefore, eligible for an

IRA Election.

STANDARD OF REVIEW

A district court’s decision to grant or deny summary judgment is reviewed

de novo. See, e.g., Branch Banking & Tr. Co. v. D.M.S.I., LLC, 871 F.3d 751, 759

(9th Cir. 2017); Artichoke Joe’s Cal. Grand Casino v. Norton, 353 F.3d 712, 719-

720 (9th Cir. 2003). A district court’s decision on cross motions for summary

judgment is also reviewed de novo. See Guatay Christian Fellowship v. County of

San Diego, 670 F.3d 957, 970 (9th Cir. 2011); Travelers Prop. Cas. Co. of Am. v.

Conoco Phillips Co., 546 F.3d 1142, 1145 (9th Cir. 2008).

ARGUMENT

I. THE REQUIREMENTS FOR ORGANIZING A HALF BLOOD

INDIAN COMMUNITY TRIBAL GOVERNMENT UNDER

THE IRA AND THE SETTLEMENT AGREEMENT ARE SET

FORTH IN 25 U.S.C. § 5129 AND 25 C.F.R. § 81.1.

Title 25 of the United States Code § 5123 provides:

Any Indian tribe shall have the right to . . . adopt an appropriate

constitution . . . at a special election authorized and called by the

Secretary . . .

* * *

The Secretary shall call and hold an election . . . (A) within one

hundred and eighty days after the receipt of a tribal request.


13

25 U.S.C. § 5123(a)-(c). (emphasis added).

Federal courts have interpreted this language as placing a mandatory duty on

the Secretary to call an election under Section 5123 upon receipt of a request to do

so from an eligible Indian tribe. Coyote Valley Band of Pomo Indians v. United

States, 639 F. Supp. 165, 176 (E.D. Cal. 1986).

Title 25 of the United States Code § 5129 and Title 25 of the Code of

Federal Regulations § 81.1(w) defines an eligible Indian tribe as either: (1) any

Indian tribe, or (2) the Indians residing on one reservation. To determine whether a

group of Indians is an Indian tribe or the Indians residing on one reservation,

Congress has defined the term “Indian” to mean any one of the following: (1) “all

persons of Indian descent who are members of any recognized Indian tribe now

under Federal jurisdiction;” (2) “their descendants” who on June 1, 1934, were

residing within the present boundaries of any Indian reservation, and (3) “all other

persons of one-half or more Indian blood.” 25 U.S.C. § 5129; 25 C.F.R. § 81.1(w).

Thus, to be an eligible “Indian tribe” within the meaning of § 5123, the Indian

group must either be: (1) members of a “recognized Indian tribe now under Federal

jurisdiction,” and their descendants residing on a reservation or (2) Indians of the

half blood or more residing on a reservation, but not both. Carcieri v. Salazar, 555

U.S. 379 (2009).


14

In order to be eligible to organize a tribal government pursuant to an IRA

Election as a half blood Indian community, a group of Indians must meet three (3)

criteria: (1) they must possess one-half (1/2) or more Indian blood; (2) they must

reside on one reservation and (3) the reservation that they are living on must have

been established for them or their ancestors. 25 U.S.C. § 5129; 25 C.F.R. §

81.1(w).

If an Indian group can meet these Three Criteria, then they are an Indian

tribe as that term is used in 25 U.S.C. § 5123, and they are eligible for an election

conducted by the Secretary under § 5123 and § 5129 and 25 C.F.R. § 81.1(i) and §

81.1(w).

In addition, in order to be eligible for an IRA Election under the Secretary’s

Regulations, any petition submitted to the Secretary requesting an election must be

signed by at least “60 percent of the tribe’s adult members.” 25 C.F.R. § 81.5(b).

Under the Regulations, an “adult member” is defined as “any Indian as

defined in paragraph (i) of this section who has attained the age of 18 years,” 25

C.F.R. § 81.1(a), and “Indians” is defined as “any person not a member of one of

the listed or eligible to be listed tribes who possess at least one-half degree of

Indian blood.” 25 C.F.R. § 81.1(i)(2).

Taking the criteria established in both Section 5129 and Part 81 together, a

group of Indians is eligible for an IRA Election if its members: (1) possesses at


15

least one-half (1/2) Indian blood; (2) resides on a reservation set aside for them by

the government; and (3) constitutes at least “60 percent” of the adult half blood

Indians residing on the reservation. As will be shown in Section IV below, the

Indians meet all of these Three Criteria.

II. THE CONDUCT OF THE FEDERAL OFFICIALS IN THIS

CASE MUST BE JUDGED BY THE HIGHEST FIDUCIARY

STANDARDS.

It is indisputable that the United States maintains a trust relationship with

Indians and Indian tribes. “This principal has long dominated the Government’s

dealings with Indians.” United States v. Mitchell, 463 U.S. 206, 225 (1983). See,

United States v. Mason, 412 U.S. 391, 398 (1973); Minnesota v. United States, 305

U.S. 382, 386 (1939); United States v. Shoshone Tribe, 304 U.S. 111, 117-118

(1938); United States v. Candelaria, 271 U.S. 432, 442 (1926); McKay v. Kalyton,

204 U.S. 458, 469 (1907); Minnesota v. Hitchcock, 185 U.S. 373, 396 (1902);

United States v. Kagama,118 U.S. 375, 382-384 (1886); Cherokee Nation v.

Georgia, 30 U.S. 1 (1831). The nature of that trust relationship was eloquently

stated by the Supreme Court in Seminole Nation v. United States, 316 U.S. 286

(1942):

[T]his Court has recognized the distinctive obligation of trust

incumbent upon the Government in its dealings with these dependent

and sometimes exploited people. . . . In carrying out its treaty

obligations with the Indian tribes the Government is something more

than a mere contracting party. Under a humane and self imposed

policy which has found expression in many acts of Congress and


16

numerous decisions of this Court, it has charged itself with moral

obligations of the highest responsibility and trust. Its conduct, as

disclosed in the acts of those who represent it in dealings with the

Indians, should therefore be judged by the most exacting

fiduciary standards.

Id., at 296-297. (citation omitted); (emphasis added).

The existence of a fiduciary responsibility toward Indians exists,

furthermore, independent of an express provision of a treaty, agreement, executive

order or statute.

Defendant [federal government] contends that no fiduciary obligation

can arise unless there is an express provision of a treaty, agreement,

executive order or statute creating such a trust relationship, and the

trust relationship is limited by the precise terms of the document. If

by this the Government means that the document has to say in

specific terms that a trust or fiduciary relationship exists or is

created, we cannot agree. The existence vel non of the relationship

can be inferred from the nature of the transaction or activity.

Navajo Tribe of Indians v. United States, 624 F.2d 981, 987 (Ct. Cl. 1980).

(emphasis added.)

Furthermore, the trust duty, standing alone, independent from any duty

imposed by federal statute upon the Executive Branch of the United States

Government, can serve as an adequate legal basis for the declaratory and injunctive

relief sought by the Indians:

When the Congress legislates for Indians only, something more than a

statutory entitlement is involved. Congress is acting upon the

premise that a special relation is involved, and is acting to meet

the obligation inherent in that relationship.


17

White v. Califano, 437 F. Supp. 543, 557 (D.S.D. 1977) (emphasis added). See,

also, Lane v. Pueblo of Santa Rosa, 249 U.S. 110 (1919); McNabb v. Bowen, 829

F.2d 787 (9th Cir. 1987); Pyramid Lake Paiute Tribe of Indians v. Morton, 354

F.Supp. 252 (D.D.C.1972).

Thus, in the exercise of its trust responsibility towards the Indians in this

case, the Federal Officials conduct must be exercised with “great care,” United

States v. Mason, 412 U.S. at, 398, in accordance with “moral obligations of the

highest responsibility and trust,” and must be judged “by the highest fiduciary

standards.” Smith v. United States, 515 F. Supp. 56, 60 (N.D. Cal. 1978).

III. ANY DOUBTS OR AMBIGUITIES IN THE IRA OR THE

SETTLEMENT AGREEMENT MUST BE CONSTRUED BY

THIS COURT IN FAVOR OF THE INDIANS.

For over 180 years, the Supreme Court has adhered to “the general rules that

statutes3 passed for the benefit of the dependent Indian tribes . . . are to be liberally

construed, doubtful expressions being resolved in favor of the Indians.” Alaska

Pacific Fisheries Co. v. United States, 248 U.S. 78, 89 (1918). Accord, County of

Yakima v. Confederated Tribes and Bands of the Yakima Indian Nation, 502 U.S.

251, 269 (1992); Montana v. Blackfeet Tribe, 471 U.S. 759, 766 (1985).

3 The Supreme Court has held that the Indians canons of statutory construction

apply equally as well to agreements entered into between Indians and the United

States. See, e.g., Winters v. United States, 207 U.S. 564 (1908); see also Choate v.

Trapp, 224 U.S. 665 (1912).


18

There is no question that the Indian canons of construction apply to the IRA.

Coyote Valley Band of Pomo Indians v. United States, 639 F. Supp. 165, 170 (E.D.

Cal. 1986). Assuming the IRA is ambiguous with regard to whether a group of

Indians meets the Three Criteria and is, therefore, an “Indian tribe” within the

meaning of § 5123, the Indian cannons of construction must be applied to resolve

any ambiguities in the IRA or Regulations in favor of the Indians. Id.

Moreover, the interpretation of a statute by the agency charged with its

administration is entitled to great deference. Chevron, U.S.A., Inc. v. NRDC, Inc.,

467 U.S. 837 (1984). Likewise, the agency’s interpretation of an administrative

regulation is controlling unless “plainly erroneous or inconsistent with the

regulation.” United States v. Larionoff, 431 U.S. 864, 872 (1977).

Pursuant to the authority delegated to him by 25 U.S.C. § 5123, the

Secretary has promulgated the Regulations defining what Indian groups are an

“Indian tribe” within the meaning of § 5123, and eligible for an IRA Election. See

25 C.F.R. § 81.1(i) and 81.1(w).

The definition of an Indian tribe in the Regulations is consistent with the

Indians interpretation that an Indian group is an “Indian tribe” eligible for an IRA

election if they meet the Three Criteria. 25 C.F.R. § 81.1(w). The Federal Officials

argument that an Indian group is not eligible for an IRA Election if they are a

“splinter group” is belied by the Secretary’s own administrative Regulations that


19

make it clear that an Indian group is eligible for an IRA Election if they meet the

Three Criteria and no other. 25 C.F.R. § 81.1(w).

The IRA and Regulations are clear and unambiguous. They establish Three

Criteria that the Indians must meet in order to be eligible for an IRA Election. If,

however, this Court finds any ambiguities in the IRA, the Regulations, or the

Settlement Agreement, those ambiguities have to be resolved in favor of the

Indians.

Application of the Blackfeet presumption is straightforward. We are

confronted by an ambiguous provision in a federal statute that was

intended to benefit Indian tribes. One construction of the provision

favors Indian tribes, while the other does not. We faced a similar

situation in the context of Indian taxation in Quinault Indian Nation v.

Grays Harbor County, 310 F.3d 645 (9th Cir. 2002). In choosing

between two characterizations of tax law “plagued with ambiguity,”

we adopted the construction that favored the Indian Nation over the

one that favored Grays Harbor County, noting that “it is not enough to

be persuaded that the County’s is a permissible or even the better

reading.” Id. at 647. Here, we must follow a similar approach. We

adopt Defendants’ construction, not because it is necessarily the better

reading, but because it favors Indian tribes and the statute at issue is

both ambiguous and intended to benefit those tribes.

Artichoke Joe’s Ca. Grand Casino v. Norton, 353 F.3d 712, 730 (9th Cir. 2003).

IV. THE INDIANS MEET ALL OF THE REQUIREMENTS

UNDER THE IRA AND THE REGULATIONS FOR

ORGANIZING A HALF BLOOD INDIAN COMMUNITY

TRIBAL GOVERNMENT.

There is no doubt, based on the Documentation submitted by the Indians to

the Regional Director, pursuant to the Settlement Agreement, that the Indians meet


20

all three of the eligibility criteria established by Congress in 25 U.S.C. § 5129 and

by the Secretary in 25 C.F.R. § 81.1(w) for organizing a tribal government as a half

blood Indian community under 25 U.S.C. § 5123.

First, each of the Indians was issued “Certificates of Indian Blood” by the

Federal Officials certifying that they possessed one-half (1/2) or more Pomo Indian

blood. ER 68, 72.

Second, each of the Indians submitted declarations under penalty of perjury

declaring that they lived and resided on the Reservation. In addition, the Indians

submitted to the Regional Director drivers licenses and utility bills confirming that

they resided on the Reservation. ER 68, 72.

Third, the Indians provided the Regional Director with historical documents

showing that the Reservation was not established for any specific federally

recognized Indian tribe under the jurisdiction, at the time, of the United States.

Rather, the Reservation was purchased for homeless California Indians in general

to make land available for residential housing development. ER 35, 51-53. The

Indians provided further documentation to show that the BIA made formal “land

assignments” or lots available to Indian families on the Reservation for the

construction of homes, ER 35, 38-49, 51-53, and that all of the Indians were

descendants of the original BIA land assignees. ER 34-36, 38-49.


21

In addition, in 1934, the Indians who were then residing on the Reservation

voted not to reject the provisions of the IRA in an election conducted by the

Secretary. ER 35, 55-56. The Indians are descendants of the Indians that voted in

the 1934 IRA election. ER 35, 58-62.

Finally, the United States illegally terminated the Reservation. In doing so,

the United States had to decide which Indians were the beneficial owners of the

Reservation. To accomplish this goal, the BIA prepared a plan for subdividing the

Reservation into individual parcels and conveying those parcels to the adult

Indians who the BIA determined the Reservation was established for. Adult

Indians in the plan were called distributees and the adult Indians’ spouses and

children were called “dependent members.” ER 35, 64-66. All of the Indians were

named in the distribution plan as either original “Distributees” or “Dependent

Members.” ER 35, 58-62. Based on the historical Documentation submitted by the

Indians to the Regional Director regarding the illegal termination of the

Reservation, there is no doubt that the Reservation was established by the United

States for the Indians.

Also, the Indians submitted declarations under penalty of perjury that they

were not enrolled members of any other federally recognized Indian tribe,

including the Nation. ER 68, 72.


22

Finally, the Indians submitted Documentation showing that they constituted

more than sixty percent (60%) of the adult half blood Indians that resided on the

Reservation, demonstrating that they met the requirements of 25 C.F.R. § 81.1(a),

§ 81.1(i) and § 81.1(b).

Based upon the Documentation submitted by the Indians, the Regional

Director found that the Indians met all three (3) of the criteria established in § 5129

and § 81.1(w) defining what constituted an Indian group eligible for an IRA

Election. ER 29-31.

Despite this finding, the Regional Director, relying on the “splinter group”

and “one-tribe-per-reservation” criteria, denied the Indians request for an IRA

Election in direct violation of the clear language of § 5129, § 81.1(i), § 81.1(w) and

the Settlement Agreement.

V. THE REGIONAL DIRECTOR VIOLATED BOTH THE

SETTLEMENT AGREEMENT AND THE IRA BY REFUSING

TO CALL AND CONDUCT AN IRA ELECTION FOR THE

INDIANS THAT WOULD ALLOW THEM TO FORM A HALF

BLOOD INDIAN COMMUNITY TRIBAL GOVERNMENT.

The Settlement Agreement specifically states that the Indians are eligible for

an IRA Election if they can demonstrate that they meet the definition of an “Indian

tribe” set forth in § 5129. ER 79-80.

Plaintiffs must demonstrate eligibility under the applicable statutory

and regulatory provisions.

ER 79. (emphasis added).


23

The process outlined in this Settlement Agreement therefore will be

governed by the regulations that are in effect when the Settlement

Agreement becomes effective [January 20, 2015].

ER 80 (emphasis added).

. . . the Pacific Regional Director will issue a final determination

whether the Group is eligible to organize as a tribe under 25 U.S.C. §

5123 and 25 C.F.R. § 81.1(w)(2).

ER 84-85 (emphasis added).

If . . . the Pacific Regional Director determines that the Group has

failed to meet one of the statutory and regulatory requirements for

being a “tribe” eligible to organize under the IRA, . . .

ER 85 (emphasis added).

The plain language of the Settlement Agreement does not allow the Director

to go outside the “statutory” (§ 5129) and “regulatory” (§ 81.1) criteria established

by Congress and the Secretary for determining whether the Indians are an eligible

“Indian tribe.”

Moreover, Section 5123 is clear. Any “Indian tribe” shall have the right to

organize. The term “Indian” is defined under the IRA to “further include all other

persons of one-half or more Indian blood.” 25 U.S.C. § 5129. The term “tribe” is

defined as “the Indians residing on one reservation.” Id. Taken together, the term

“Indian tribe” is defined by Congress as “persons of one-half or more Indian

blood” “residing on one reservation.” 25 U.S.C. § 5129.

In addition, the IRA Regulations are clear and consistent with the statutory

criteria. In the Regulations, the Secretary defined an Indian as “any person not a


24

member of one of the listed or eligible to be listed tribes [listed on the Federal

Register as a federally recognized Indian tribe] who possesses at least one-half

degree of Indian blood.” 25 C.F.R. § 81.1(i).

In the IRA Regulations, the Secretary defined the term “tribe” as “any group

of Indians whose members each have at least one-half degree of Indian blood for

whom a reservation is established and who each reside on that reservation.” 25

C.F.R. § 81.1(w). Again, taken together, the Regulations are clear and

unambiguous, they define an “Indian” as a person who is “not a member” of any

federally recognized Indian tribe, who “possesses at least one-half degree of Indian

blood” and “who each reside” on a reservation “established” for them. 25 C.F.R. §

81.1(i) and (w).

The IRA, § 5129, and the Regulations, § 81.1, are consistent, clear, and

unambiguous. Taken together, along with the Settlement Agreement, they not only

establish the only criteria for determining whether a group of half-blood Indians

are eligible for an IRA election, they also preclude the Regional Director from

denying an IRA election to the Indians based upon criteria other than the criteria

set forth in the statute and regulations.

The plain language of the IRA, § 5129 and the IRA Regulations, § 81.1, is

also consistent with those portions of the Settlement Agreement that define who is

eligible to organize as a half-blood Indian tribe. The statute specifies that the


25

relevant group is the half-blood Indians residing on one reservation. 25 U.S.C. §

5129. Neither the Regulations nor the Settlement Agreement states that to be

eligible to organize as a half-blood Indian tribe, all or nearly all of the Indians

residing on a reservation must petition the Secretary for an IRA election. Instead,

under the Regulations and Settlement Agreement, only “60% of the adult Indians

listed on the ‘final members list’” approved by the Regional Director need sign the

petition. ER 86.

Here, the total member of half-bloods residing on the Reservation is twenty

(20). ER 68-69. 4 The total number of Indians that signed the petition requesting

the Secretary to call an IRA election was eighteen (18)5, which is more than sixty

percent (60%) of the Indians listed on the “final members list.” ER 69.

4 Labeling the Indians as a “splinter group” or “subset” of the group of Indians for

whom the Reservation was established gives the impression that the Indians,

totaling 18 half-blood Indians, is a small portion of the total number of the Indians.

That is not the case. The Indians are actually the overwhelming majority of the

Indians residing on the Reservation for whom the Reservation was established.

Currently there are fifty-one (51) adult Indians residing on the Reservation. Thirty-

two (32) of these Indians are members of other federally recognized Indian tribes

and are not members of the Nation. ER 69.

5 It is not unusual for a one-half blood Indian tribe to be composed of as few as 20

individuals. The BIA, for example, called an IRA election for the Jamul Indian

Village in 1981. In the Jamul case, twenty-three (23) half-blood Indians petitioned

the BIA to organize a tribal government pursuant to 25 U.S.C. § 5123. The BIA

called and conducted the IRA election and subsequently recognized the Jamul half-

blood Indian tribe as a federally recognized Indian tribe. See Walter Rosales, et al.

v. Sacramento Area Director, Bureau of Indian Affairs, 34 IBIA 50, 50-51

(07/29/1999).


26

Because the statute, § 5129, the Regulations, § 81.1 and § 81.5 and the

Settlement Agreement are all consistent and unambiguous, there is no need for this

Court to interpret the IRA and the IRA Regulations to resolve any ambiguities.6

Based on the foregoing, the Regional Director’s Decision violates the

Administrative Procedure Act, 5 U.S.C. §§ 552-553 and 701-705 (“APA”), the

IRA, the Regulations and the Settlement Agreement in three ways. First, the

Decision finding that the Indians “are only a subset of the Indians for whom the

Reservation was set aside,” is factually incorrect and not supported by substantial

evidence in the administrative record. Second, the Settlement Agreement precludes

the Director from considering any eligibility criteria that is not contained in either

the IRA or the IRA Regulations for determining whether the Indians are a half-

blood Indian tribe. Finally, the Regional Director has imposed two new criteria,

the “only-one-tribe-per-reservation” and the “splinter group” criteria for

determining whether the Indians are a half-blood Indian tribe, without going

through formal rulemaking as required by the APA, 5 U.S.C. § 552-553.

For each of these reasons, the Decision holding that the Indians are not

eligible for an IRA election is invalid.

6 However, if the Court finds that any of the provisions of the IRA or the IRA

Regulations are ambiguous, as stated above, those provisions must be interpreted

as the Indians understand them, pursuant to the Indians Canons of Construction.

Montana v. Blackfeet Tribe of Indians, 471 U.S. 759 (1985).


27

The very basis for the Regional Director’s Decision is that the Indians are a

“splinter group” or part of a larger group of Indians for whom the Reservation was

originally purchased.

The definition of “Tribe” as it relates to the Pinoleville Rancheria and

their eligibility to organize under the IRA is limited to the group of

Indians, . . . for whom the Pinoleville Rancheria was originally

purchased.

* * * *

. . . your clients represent only a portion of the descendants of those

Indians for whom the Pinoleville Rancheria was originally

purchased . . .

* * * *

My decision is based on the fact that your clients are only a subset of

the Indians for whom the Pinoleville Rancheria was set aside.

ER 23. (emphasis added).

Despite the Regional Director’s findings on this issue, the evidence in the

record does not support this conclusion. Rather, the record shows that the

Reservation was purchased for homeless California Indians in general and not for

an identifiable tribe or for any specific individual Indians. ER 35, 51-53. Instead,

after the Reservation was purchased by the United States, individual Indians living

in the area of the Reservation made application to the BIA to move onto and

occupy or use a certain portion of the Reservation. Id. There are, therefore, no

facts in the record to support the Regional Director’s finding that the Reservation

was “originally purchased” for a larger group of Indians, of which the Indians are a

subset.


28

Importantly, the Regional Director correctly found that the Reservation was

established for the Indians, relying on, among other facts, that the Indians were

conveyed portions of the Reservation at the time the Reservation was illegally

terminated. ER 21. The fact that the Indians were conveyed portions of the

Reservation at the time of termination is supported by the Administrative Record.

ER 35-36, 64-66.

In addition, the term “splinter group” is used in 25 C.F.R. § 83.3(d), which

is part of the Acknowledgment Regulations that the Secretary has promulgated to

“establish a department procedure and policy for acknowledging that certain

American Indian groups exist as tribes.” 25 C.F.R. § 83.2. It is not part of the IRA

Regulations for determining whether an “Indian tribe,” as defined by § 5129 and §

81.1 are eligible for an IRA Election under § 5123.

Title 25 of the Code of Federal Regulations Section 83.3(d) states:

Splinter groups, political factions, communities or groups of any

character that separate from the main body of a currently

acknowledged tribe may not be acknowledged under these

regulations.

The phrase “under these regulations,” refers to the Acknowledgment

Regulations found in 25 C.F.R. Part 83 and not the Regulations governing IRA

Elections. Thus, the Secretary’s own regulations limit the use of the “splinter

group” criteria to the acknowledgment process.


29

By using the Acknowledgment Regulations criteria to determine the

eligibility of a half blood Indian community for an IRA Election, the Regional

Director has added new criteria to the IRA Election process never contemplated by

Congress and without going through formal rulemaking under the APA.7

Thus, the criteria relied upon by the Regional Director to disqualify the

Indians is not supported by the record. Instead, the record supports the findings

made by the Regional Director that the Indians possess one-half Indian blood,

reside on the Reservation and that the Reservation was established for them. ER

20. Based on the Regional Director’s findings, the Indians meet all of the criteria

under § 5129 and § 81.1 for establishing that they are an Indian tribe within the

meaning of 25 U.S.C § 5123.

In addition, as previously shown, the Settlement Agreement precludes the

Regional Director from considering any criteria outside the criteria established in §

5129 or § 81.1. Neither § 5129 or § 81.1 prohibits more than one group of Indians

residing on the same reservation from organizing a tribal government under the

IRA.8 By imposing the “only-one-tribe-per-reservation” and “splinter group”

7 Moreover, there is nothing in either 25 C.F.R. Part 81 or 25 C.F.R. Part 83 that

makes 25 C.F.R. § 83.3(d) applicable to the IRA Election process or states that a

“splinter group” cannot organize under the IRA if they otherwise meet the Three

Criteria. 8 It is not uncommon for more than one tribe to occupy a single reservation. The

Eastern Shoshone and Northern Arapaho Tribes are separate federally recognized


30

criteria, the Regional Director has gone outside the criteria established in the

Settlement Agreement, the IRA and the IRA Regulations for determining whether

the Indians are a half-blood Indian tribe within the meaning of § 5129 and § 81.1.

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S.

29, 43 (1983) (“Normally, an agency rule would be arbitrary and capricious if the

agency has relied on facts which Congress has not intended it to consider . . .”).

Finally, there is no doubt that the “only-one-tribe-per-reservation” and

“splinter group” criteria are new eligibility criteria adopted by the Regional

Director without the BIA going through the formal rulemaking process required by

the APA, 5 U.S.C. § 552-553. See Morton v. Ruiz, 415 U.S. 199 (1974).

The “only-one-tribe-per-reservation” and “splinter group” criteria was never

published nor was notice give and the opportunity to comment provided to Indian

groups whose ability to organize would be affected by the adoption of the criteria.

Because the application of the criteria has the effect of granting or denying the

Indians of a vested right to an IRA Election and was never adopted in accordance

with the formal rulemaking procedures set forth in the APA, the imposition of the

criteria is impermissible. Id. at 207-208.

. . . it is essential that the legitimate expectation of these needy Indians

not be extinguished by what amounts to an unpublished ad hoc

determination of the agency that was not promulgated in accordance

Indian tribes that occupy one reservation, the Wind River Indian Reservation in

Wyoming. 81 Federal Register 26826 (May 4, 2016).


31

with its own procedures, to say nothing of those of the Administrative

Procedure Act. The denial of benefits to these respondents under such

circumstances is inconsistent with “the distinctive obligation of trust

incumbent upon the Government in its dealing with these dependent

and sometimes exploited people.” Seminole Nation v. United States,

316 U.S., at 296; see Squire v. Capoeman, 351 U.S. 1 (1956). Before

benefits may be denied to these otherwise entitled Indians, the BIA

must first promulgate eligibility requirements according to established

procedures.

Morton v. Ruiz, 415 U.S. 199, 232-233 (1974); accord Serrato v. Clark, 486 F. 3d

560, 569 (9th Cir. 2007).

Lastly, the Regional Director applying the “only-one-tribe-per-reservation”

and “splinter group” criteria, raises another fundamental issue. If the Federal

Officials intended that the Settlement Agreement encompass the “only-one-tribe-

per-reservation”, “splinter group” criteria, then, at the time the Settlement was

agreed to, the Federal Officials knew that it was impossible for the Indians to

qualify for an IRA Election. At the time that the Settlement Agreement was

entered into, the Federal Officials were well aware that the Pinoleville Pomo

Nation had been recognized. Under those circumstances, the Settlement Agreement

was merely a dishonest theatre on the part of the Federal Officials, and an

unknowing exercise in futility for the Indians, who thought they had to meet just

the criteria explicitly listed in the Settlement Agreement.9 Fortunately, the Court

9 If the one-tribe-per-reservation/splinter group criteria is valid, that could call into

question the validity of the Settlement Agreement. First, if the Federal Officials

knew it would be impossible for the Indians to qualify to hold an IRA election


32

need not address the issue of whether the Federal Officials perpetrated a fraud on

the Indians in inducing them to enter into the Settlement Agreement since the

imposition of the only-one-tribe-per-reservation/splinter group criteria violates the

APA and is impermissible.

CONCLUSION

The Regional Director violated the IRA, the IRA Regulations, the

Settlement Agreement, and the APA by refusing to call an IRA Election for the

Indians because, purportedly, they were not the first group of Indians for whom the

Reservation was originally purchased to organize a tribal government under the

IRA. As a result of the Regional Director’s illegal conduct, the Indians have been

denied their right to establish a tribal government and to apply to the BIA for

benefits and service made available to tribal governments by Congress.

prior to entering into the Settlement Agreement, the Settlement Agreement might

constitute fraudulent misrepresentation, in that the Federal Officials intended to

induce the Indians’ assent to the Settlement Agreement by making a representation

they knew was false. Restatement (Second) of Contracts, §§ 159-164, 167 (1981).

Second, assuming the Federal Officials used the Settlement Agreement as a sleight

of hand, their promise to be bound by the Settlement Agreement could be deemed

illusory, because the Federal Officials reserved a choice of alternative

performance, namely, to deny the Indians an IRA Election because of the

additional criteria beyond the scope of the explicit criteria set forth in the

Settlement Agreement. Restatement (Second) of Contracts, § 77 (1981). Finally,

there was, arguably, no manifestation of mutual assent to the agreement, because

the Indians could not know the Federal Officials meant to leave open the

possibility of adding criteria beyond the scope of the explicit criteria set forth in

the Settlement Agreement. Restatement (Second) of Contracts, § 20 (1981).


33

In denying the Indians request for an IRA Election, the Regional Director

made a finding that the Indians were a subset of a larger group of Indians for

whom the Reservation was originally purchased. This finding is contrary to the

evidence in the record that the Reservation was purchased for homeless California

Indians and that, based upon the termination of the Reservation, the Reservation

was established for the Indians.

In addition, the Regional Director created and adopted two new criteria for

determining whether the Indians were a half blood Indian tribe that was not

contained in either § 5129 of the IRA or § 81.1 of the IRA Regulations, the “only-

one-tribe-per-reservation” and “splinter group” criteria. Those criteria were never

adopted by formal rulemaking and went beyond the criteria the Regional Director

was allowed to consider in making her Decision under the Settlement Agreement.

The Regional Director rendered her Decision denying the Indians request for

an IRA election, despite the fact that the Regional Director found, based upon the

evidence in the record, that the Indians met all of the criteria established by

Congress in § 5129 and the Secretary in § 81.1 for establishing that they

constituted an Indian tribe within the meaning of 25 U.S.C. § 5123.

The Regional Director, therefore, erred in failing to apply the eligibility

criteria adopted by Congress in § 5129 and the Secretary in § 81.1 for determining

whether the Indians were an eligible Indian tribe as defined by § 5129.


34

The Federal Officials’ justification of the Regional Director’s Decision is

profoundly disingenuous, their characterization of the facts dishonest, and their

legal arguments meritless. The Indians meet all of the criteria listed in the

Settlement Agreement, the IRA and the Regulations defining an “Indian tribe.”

The Indians qualify for an IRA Election.

Unless this Court reverses the Regional Director’s Decision, the Regional

Director’s violations of federal law and the Settlement Agreement will be allowed

to stand and the Indians will be deprived of fundamental rights guaranteed to them

by federal law.

For these reasons and the reasons stated above, this Court should: (1) reverse

the Regional Director’s Decision; (2) find that the only criteria the Indians need to

meet under the Settlement Agreement are the criteria set forth in 25 U.S.C. § 5129

and 25 C.F.R. § 81; (3) find that the Indians have met this criteria and are eligible

for an IRA Election, and (4) order the Regional Director to call and conduct an

IRA Election for the Indians.

DATED: April 20, 2018 Respectfully Submitted

RAPPORT AND MARSTON

By: /s/ Lester J. Marston

LESTER J. MARSTON,



35

ADDENDUM

§ 5123. .............................................................................................................. TAB A

25 U.S. Code § 5129 ........................................................................................ TAB B

25 U.S.C. § 81.1 ............................................................................................... TAB C

25 U.S.C. § 83.3 ............................................................................................... TAB D


36

§ 5123.

Organization of Indian tribes; constitution and bylaws and amendment thereof;

special election

(a) Adoption; effective date

Any Indian tribe shall have the right to organize for its common welfare, and may

adopt an appropriate constitution and bylaws, and any amendments thereto, which

shall become effective when-

(1) ratified by a majority vote of the adult members of the tribe or tribes at a

special election authorized and called by the Secretary under such rules and

regulations as the Secretary may prescribe; and

(2) approved by the Secretary pursuant to subsection (d) of this section.

(b) Revocation

Any constitution or bylaws ratified and approved by the Secretary shall be

revocable by an election open to the same voters and conducted in the same

manner as provided in subsection (a) of this section for the adoption of a

constitution or bylaws.

(c) Election procedure; technical assistance; review of proposals; notification of

contrary-to-applicable law findings

(1) The Secretary shall call and hold an election as required by subsection (a) of

this section-

(A) within one hundred and eighty days after the receipt of a tribal request for an

election to ratify a proposed constitution and bylaws, or to revoke such constitution

and bylaws; or

(B) within ninety days after receipt of a tribal request for election to ratify an

amendment to the constitution and bylaws.

(2) During the time periods established by paragraph (1), the Secretary shall-

(A) provide such technical advice and assistance as may be requested by the tribe

or as the Secretary determines may be needed; and (B) review the final draft of the


37

constitution and bylaws, or amendments thereto to determine if any provision

therein is contrary to applicable laws.

(3) After the review provided in paragraph (2) and at least thirty days prior to the

calling of the election, the Secretary shall notify the tribe, in writing, whether and

in what manner the Secretary has found the proposed constitution and bylaws or

amendments thereto to be contrary to applicable laws.

(d) Approval or disapproval by Secretary; enforcement

(1) If an election called under subsection (a) of this section results in the adoption

by the tribe of the proposed constitution and bylaws or amendments thereto, the

Secretary shall approve the constitution and bylaws or amendments thereto within

forty-five days after the election unless the Secretary finds that the proposed

constitution and bylaws or any amendments are contrary to applicable laws.

(2) If the Secretary does not approve or disapprove the constitution and bylaws or

amendments within the forty-five days, the Secretary's approval shall be

considered as given. Actions to enforce the provisions of this section may be

brought in the appropriate Federal district court.

(e) Vested rights and powers; advisement of presubmitted budget estimates

In addition to all powers vested in any Indian tribe or tribal council by existing

law, the constitution adopted by said tribe shall also vest in such tribe or its tribal

council the following rights and powers: To employ legal counsel; to prevent the

sale, disposition, lease, or encumbrance of tribal lands, interests in lands, or other

tribal assets without the consent of the tribe; and to negotiate with the Federal,

State, and local governments. The Secretary shall advise such tribe or its tribal

council of all appropriation estimates or Federal projects for the benefit of the tribe

prior to the submission of such estimates to the Office of Management and Budget

and the Congress.

(f) Privileges and immunities of Indian tribes; prohibition on new regulations

Departments or agencies of the United States shall not promulgate any regulation

or make any decision or determination pursuant to the Act of June 18, 1934 (25

U.S.C. 461 et seq., 48 Stat. 984) 1 as amended, or any other Act of Congress, with


http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title25-section5123&num=0&edition=prelim#5123_1_target

38

respect to a federally recognized Indian tribe that classifies, enhances, or

diminishes the privileges and immunities available to the Indian tribe relative to

other federally recognized tribes by virtue of their status as Indian tribes.

(g) Privileges and immunities of Indian tribes; existing regulations

Any regulation or administrative decision or determination of a department or

agency of the United States that is in existence or effect on May 31, 1994, and that

classifies, enhances, or diminishes the privileges and immunities available to a

federally recognized Indian tribe relative to the privileges and immunities available

to other federally recognized tribes by virtue of their status as Indian tribes shall

have no force or effect.

(h) Tribal sovereignty

Notwithstanding any other provision of this Act-

(1) each Indian tribe shall retain inherent sovereign power to adopt governing

documents under procedures other than those specified in this section; and

(2) nothing in this Act invalidates any constitution or other governing document

adopted by an Indian tribe after June 18, 1934, in accordance with the authority

described in paragraph (1).

(June 18, 1934, ch. 576, §16, 48 Stat. 987 ; Pub. L. 100–581, title I, §101, Nov. 1,

1988, 102 Stat. 2938 ; Pub. L. 103–263, §5(b), May 31, 1994, 108 Stat. 709 ; Pub.

L. 106–179, §3, Mar. 14, 2000, 114 Stat. 47 ; Pub. L. 108–204, title I, §103, Mar.

2, 2004, 118 Stat. 543 .)


http://uscode.house.gov/statviewer.htm?volume=48&page=987








39

25 U.S. Code § 5129

Definitions

The term “Indian” as used in this Act shall include all persons of Indian descent

who are members of any recognized Indian tribe now under Federal jurisdiction,

and all persons who are descendants of such members who were, on June 1, 1934,

residing within the present boundaries of any Indian reservation, and shall further

include all other persons of one-half or more Indian blood. For the purposes of this

Act, Eskimos and other aboriginal peoples of Alaska shall be considered Indians.

The term “tribe” wherever used in this Act shall be construed to refer to any Indian

tribe, organized band, pueblo, or the Indians residing on one reservation. The

words “adult Indians” wherever used in this Act shall be construed to refer to

Indians who have attained the age of twenty-one years.

(June 18, 1934, ch. 576, § 19, 48 Stat. 988.)


https://www.law.cornell.edu/definitions/uscode.php?width=840&height=800&iframe=true&def_id=25-USC-2100368841-573781854&term_occur=778&term_src=title:25:chapter:45:section:5129



https://www.law.cornell.edu/rio/citation/48_Stat._988

40

25 U.S.C. § 81.1

§ 81.1 Definitions.

As used in this part: (a) Adult Indian means any Indian as

defined in paragraph (i) of this section who has attained the age of 18 years.

(b) Amendment means any modifica tion, change, or total revision of a con stitution or charter.

(c) Authorizing Officer means the Bu reau of Indian Affairs official having authority to authorize the calling of a Secretarial election.

(d) Cast ba:llot means an official ballot that is cast in the proper manner at

the proper time by a duly registered voter. A ballot is cast by duly placing it in the ballot box or, in the case of absentee voting, when the ballot is duly received through the mail by the election board.

(e) Charter means the charter of in corporation the Secretary may issue to a reorganized tribe pursuant to Federal Statute.

(f) Commissioner means the Commis sioner of Indian Affairs or his/her au thorized representative.

(g) Constitution or Constitution and By laws means the written organiza tional framework of any tribe reorga nized pursuant to a Federal Statute for the exercise of governmental powers.

(h) Federal Statute means one of the following: (1) The Act of June 18, 1934, 48 Stat. 984, as amended (Indian Reor ganization Act); (2) the Act of June 26, 1936, 49 Stat. 1967 (Oklahoma Indian Welfare Act); or (3) the Act of May 1, 1936, 49 Stat. 1250 (Alaska Native Reor ganization Act).

(i) Indian means: (1) All persons who are members of those tribes listed or eligible to be listed in the FEDERAL REGISTER pursuant to 25 CFR 83.6(b) as recognized by and receiving services from the Bureau of Indian Affairs; pro vided, that the tribes have not voted to exclude themselves from the Act of June 18, 1934, 43 Stat. 984, as amended; and (2) any person not a member of one of the listed or eligible to be listed tribes who possesses at least one-half degree of Indian blood.

(j) Invalid ballot means an official cast ballot discovered at the time the votes are counted which does not com ply with the requirements for voting or is not an official ballot. An invalid bal lot is not to be counted for determining the number of cast ballots.

(k) Member means any Indian who is duly enrolled in a tribe who meets a tribe's written criteria for membership or who is recognized as belonging to a tribe by the local Indians comprising the tribe.

(1) Mutilated ballot means an official ballot


41

that has been damaged to the ex tent that it is not possible to deter mine the choice the- voter intended to make. There are two kinds of muti lated official ballots:

(1) A ballot that is mutilated and not cast. In this case, the mutilated ballot may be exchanged for a new one. If the need arises to exchange a mutilated ab sentee ballot, no additional time will be provided for the new ballot to be re ceived by the election board.

(2) A ballot that is mutilated and cast. A mutilated cast ballot is to be counted in the same manner as a spoiled cast ballot.

(m) Officer in Charge means the Su perintendent, Administrative Officer, or other official of the local unit of the Bureau of Indian Affairs (or a Bureau employee that such person might des ignate) having administrative jurisdic tion over a tribe.

(n) Official ballot means a ballot pre pared by the Bureau of Indian Affairs for use in an election pursuant to this part. It is possible that an official bal lot may be found to be either spoiled or mutilated at the time the votes are counted.

(o) Registration means the act where by persons, who are eligible to vote, be come entitled or qualified to cast bal lots by having their names placed on the list of persons who will be per mitted to vote.

(p) Reorganized tribe means a tribe whose members have adopted a con stitution pursuant to a Federal Stat ute.

(q) Reservation means any area estab lished by treaty, Congressional Act, Executive Order, or otherwise for the use or occupancy of Indians.

(r) Revocation means that act whe by the adult members of a tribe vote td abandon their constitutional form of government as opposed to their voting to amend or totally revise it.

(s) Secretarial election means an elec tion held within a tribe pursuant to regulations prescribed by the Secretary as authorized by Federal Statute (as distinguished from tribal elections which are conducted under tribal au thority. (See Cheyenne River Sioux Tribe v. Andrus, 566 F. 2d 1085 (8th Cir., 1977), cert. denied 439 U.S. 820 (1978)).

(t) Secretary means the Secretary of the Interior or his/her authorized rep resentative.

(u) Spoiled ballot means an official ballot that has been marked in such a way that it is not possible to determine

the intent of the voter, a ballot that has not been marked at all, or one that has been marked so as to violate the secrecy of the ballot. There are two kinds of spoiled official ballots:

(1) A ballot that is spoiled and not


42

cast. In this case, the spoiled ballot may be exchanged for a new one. If the need arises to exchange a spoiled ab sentee ballot, no additional time will be provided for the new ballot to be re ceived by the election board.

(2) A ballot that is spoiled and cast. A spoiled cast ballot is to be counted in tabulating the total votes cast in con junction with determining whether the required percentage of the qualified voters has participated in the election.

(v) Tribal government means that enti ty established pursuant to a tribal con stitution as empowered to speak for the tribe or in the absence thereof any group or individual that is recognized by the tribal members as empowered to speak for the tribe.

(w) Tribe means: (1) Any Indian enti ty that has not voted to exclude itself from the Indian Reorganization Act and is included, or is eligible to be in cluded, among those tribes, bands, pueblos, groups, communities, or Alas ka Native entities listed in the FED ERAL REGISTER pursuant to §83.6(b) of this chapter as recognized and receiv- ! ing services from the Bureau of Indian Affairs; and (2) any group of IndianS' whose members each have at least one half degree of Indian blood for whom a r reservation is established and who each reside on that reservation. Such tribes may consist of any consolidation of one or more tribes or parts of tribes.

(x) Voting district means a geo graphical area established to facilitate a tribal election process.


43

25 U.S.C. § 83.3

§83..3 Scope.

(a) This part applies only to those American Indian groups indigenous to the continental United States which are not currently acknowledged as In dian tribes by the Department. It is in tended to apply to groups that can es tablish a substantially continuous trib al existence and which have functioned as autonomous entities throughout his tory until the present.

(b) Indian tribes, organized bands, pueblos, Alaska Native villages, or communities which are already ac knowledged as such and are receiving services from the Bureau of Indian Af fairs may not be reviewed under the

procedures established by these regula tions.

(c) Associations, organizations, cor porations or groups of any character that have been formed in recent times may not be acknowledged under these regulations. The fact that a group that meets the criteria in § 83.7 (a) through (g) has recently incorporated or other wise formalized its existing autono mous political process will be viewed as a change in form and have no bear ing on the Assistant Secretary's final decision.

(d) Splinter groups, political fac tions, communities or groups of any character that separate from the main body of a currently acknowledged tribe may not be acknowledged under these regulations. However, groups that can establish clearly that they have func tioned throughout history until the present as an autonomous tribal entity may be acknowledged under this part, even though they have been regarded by some as part of or have been associ ated in some manner with an acknowl edged North American Indian tribe.

(e) Further, groups which are, or the members of which are, subject to con gressional legislation terminating or forbidding the Federal relationship may not be acknowledged under this part.

(f) Finally, groups that previously pe titioned and were denied Federal ac knowledgment under these regulations or under previous regulations in part 83 of this title, may not be acknowledged under these regulations. This includes reorganized or reconstituted peti tioners previously denied, or splinter groups, spin-offs, or component groups of any type that were once part of peti tioners previously denied.

(g) Indian groups whose documented petitions are under active consider ation at the effective date of these re vised regulations may choose to complete their petitioning process


44

either under these regulations or under the previous acknowledgment regulations· in part 83 of this title. This choice must be made by April 26, 1994. This option shall apply to any petition for which a determination is not final and effective. Such petitioners may request a suspension of consideration under§83.lO(g) of not more than 180 days in


45

STATEMENT OF RELATED CASES

The undersigned, counsel of record for Plaintiffs-Appellants, is not aware of

any related cases.

Dated: April 20, 2018 Respectfully Submitted

RAPPORT AND MARSTON


LESTER J. MARSTON,



46

CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 32(a)(7)(C), I certify that:

This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because this brief contains 8,181 words, excluding the parts of the

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this

brief has been prepared in a proportionately spaced typeface using Microsoft Word

in Times New Roman 14-point font.


RAPPORT AND MARSTON


LESTER J. MARSTON,



47

CERTIFICATE OF SERVICE

I hereby certify that on April 20, 2018, I electronically filed the foregoing

with the Clerk of the Court for the United States Court of Appeals for the Ninth

Circuit by using the appellate CM/ECF system.

Participants in the case who are registered CM/ECF users will be served by

the appellate CM/ECF system.

Participants in the case who are not registered CM/ECF users will be served

by U.S. Mail.


By: /s/ Ericka Duncan

ERICKA DUNCAN


Documents

No. 17-17463 UNITED STATES COURT OF APPEALS FOR THE … · “Indian tribe” as defined in 25 U.S.C. § 5129 (“§ 5129”) and 25 C.F.R. § 81.1(w) (“§ 81.1(w)”) and, therefore,