Allen v. United States
| Decision Date | 09 July 2012 |
| Docket Number | No. C 11–05069 WHA.,C 11–05069 WHA. |
| Citation | 871 F.Supp.2d 982 |
| Parties | Donald ALLEN, Barbara Crabtree, Lynn Crabtree, Venus Hoaglan, Daniel Jackson, Gwen Jackson–Loss, Jessica Jackson, Martha Knight, Lucille Silva, Michael Tooley, and Clarence Wright, Plaintiffs, v. UNITED STATES of America, and Kenneth Salazar, as Secretary of the United States Department of the Interior, Defendants. |
| Court | U.S. District Court — Eastern District of California |
OPINION TEXT STARTS HERE
Lester John Marston, Rapport & Marston, Ukiah, CA, for Plaintiffs.
Jody Helen Schwarz, Kenneth Dean Rooney, U.S. Department of Justice, Environment and Natural Resources Division, Washington, DC, for Defendants.
ORDER ON MOTION TO DISMISS AND MOTION FOR SUMMARY JUDGMENT
In this Indian tribal rights action, defendants move to dismiss plaintiffs' complaint for lack of subject-matter jurisdiction and failure to state a claim. Plaintiffs move for summary judgment. This order follows full briefing and oral argument. For the reasons stated below, defendants' motion to dismiss is Granted. Plaintiffs' motion for summary judgment is Denied as Moot.
This litigation arises out of a request by 43 individuals, each allegedly possessing a one-half or more degree of Pomo Indian blood, to the Bureau of Indian Affairs (BIA), to call a Secretarial election to approve efforts by these Indian petitioners to reorganize under the Indian Reorganization Act as the Ukiah Valley Pomo Indian Tribe.1 Plaintiffs are eleven of these 43 petitioners. These eleven claim that they qualify for reorganization under the IRA because they are all individuals possessing one-half or more Indian blood and are residing on the Pinoleville Reservation (Compl. ¶ 26). It is unclear why the other 32 declined to join in this action.
In the 1950s, the United States took steps to terminate the existence of a number of Indian tribes and abolish federal programs available to them as a result of their special status as “recognized” tribes. Under the California Rancheria Act of 1958, the United States purported to terminate the existence of 41 California Indian tribes, distributing tribal property to individual tribe members. Upon distribution of tribal property, the tribes ceased to exist (for purposes of federal law) and the members of the former tribes were stripped of their status as Indians. Tribal lands, which had been held in trust and exempted from state taxation and regulatory laws, were transformed into parcels held in fee simple by the distributees. Included among the 41 California Indian tribes terminated in the Rancheria Act was the Pinoleville Rancheria, Pomo Indians of California (AR 164).2
In 1979, individuals from most of the terminated tribes commenced litigation in the United States District Court for the Northern District of California. The plaintiffs sought restoration of their status as Indians and entitlement to federal Indian benefits, as well as the right to reestablish their tribes as formal government entities. The litigation was certified as a class action (AR 4).
In 1983, the litigation was settled with respect to the members of seventeen former tribes, including the Pinoleville Rancheria (AR 1–14). A stipulated judgment was entered into by the parties, which among other things, restored and confirmed the tribal status and federal tribal recognition of these seventeen tribes ( ibid.). Following the 1983 stipulated judgment and the Pinoleville Rancheria's reestablishment as a federally recognized tribe, there was internal division over who was properly a member of the tribe (AR 41). In 2005, the Pinoleville Rancheria ratified a new constitution, renaming itself the Pinoleville Pomo Nation (AR 45). The 2005 constitution set forth different membership criteria for Indians to be part of the Pinoleville Pomo Nation, and as a result, a number of Indians were disenrolled from the tribe ( ibid.).
Between March 1, 2008, and June 30, 2008, various individuals who had been disenrolled from the Pinoleville Pomo Nation circulated a petition on the Pinoleville Indian Reservation requesting that the Secretary of the Interior call and conduct an IRA election for the Ukiah Valley Pomo Indian Tribe (AR 54–77, 82–83). It is undisputed that the Ukiah Valley Pomo Indian Tribe is not a federally recognized tribe. The petition requested that the Secretary allow the members of the alleged tribe to vote on a proposed constitution to organize a tribal government ( ibid.). The petition was signed by 43 individuals.
On May 28, 2009, some of the individuals seeking to organize as the Ukiah Valley Pomo Indian Tribe met with the then-Regional Director of the Pacific Regional Office of the Bureau of Indian Affairs, Dale Morris (AR 84). At that meeting, Regional Director Morris was presented with the petition as well as a proposed tribal membership list, a copy of the Ukiah Valley Pomo Indian Tribe's proposed constitution, and a letter from Lester Marston, petitioners' counsel, dated May 27, 2009, which formally requested that the Secretary call and conduct an election pursuant to the IRA (AR 84–130).
On November 4, 2009, Regional Director Morris sent a letter to Jerry Gidner, Director of the BIA, requesting guidance on how to proceed with the Ukiah Valley Pomo Indian Tribe's request for an IRA election (AR 131–32). Regional Director Morris stated that he was “not clear” what authority he had to conduct an election for the Ukiah Valley Pomo Indian Tribe because he understood that he had only been “delegated the authority to authorize a Secretarial election for those tribes that are federally recognized” ( ibid.).
In the early months of 2010, Attorney Marston communicated with various officials within the BIA, seeking guidance as to the status of petitioners' request (AR 135–39, 146, 153–55). In his email dated March 30, 2010, Attorney Marston mentioned that his clients were asking him to file suit against the BIA “for agency action unreasonably delayed” (AR 159).
On May 17, 2010, the new Acting Regional Director of the Pacific Regional Office of the BIA, Dale Risling, sent a letter to plaintiffs' counsel, requesting that the proposed members of the Ukiah Valley Pomo Indian Tribe submit further information to assist him in making a determination on petitioners' request for a Secretarial election (AR 163–73). Specifically, Regional Director Risling listed six inquiries concerning tribal membership, including the lineal descendant, dependence, distributee, and blood status of petitioners, noting that in his office's review of the submitted materials, the BIA had determined that fourteen of the 43 listed individuals were distributees, dependent members, or lineal descendants of a distributee or dependent member of the Pinoleville Pomo Nation and that twenty out of the 43 were “one-half Pomo/Indian bloods” ( ibid.). As to the other 23 individuals, Regional Director Risling requested that they submit additional documentation so that his office could determine their blood quantum ( ibid.).
On July 13, 2010, Attorney Marston replied to Regional Director Risling's letter, stating that the letter was not responsive to petitioners' request, and demanding that Regional Director Risling call and conduct an election for petitioners to organize their tribal government (AR 176–82). Attorney Marston further stated that if an election was not authorized on or before July 30, 2010, petitioners would file suit against the Secretary of the Interior seeking an order directing the Secretary to call and conduct an election ( ibid.).
Less than a month later, Regional Director Risling denied petitioners' request for the Secretary to call and conduct an election on the grounds that the Ukiah Valley Pomo Indian Tribe was not a federally recognized tribe (AR 183–84). Regional Director Risling's decision stated that “the authority for acknowledging that a tribe may organize under the IRA resides within the Assistant Secretary–Indian Affairs,” and that the Assistant Secretary–Indian Affairs “or his authorized representative must first acknowledge the Tribe as eligible to organize under the IRA and then authorize a Secretarial election allowing the members of the Tribe an opportunity to ratify their proposed Constitution” ( ibid.). Regional Director Risling therefore concluded that he was “without the authority” to call or conduct a Secretarial election ( ibid.). The decision denying petitioners' request included a paragraph explaining petitioners' right to appeal the decision to the Interior Board of Indian Appeals (IBIA) ( ibid.).
Instead of filing an appeal with the IBIA, petitioners, by letter dated September 8, 2010, requested that Regional Director Risling reconsider his decision (AR 185–90). Petitioners also sent a copy of their request for reconsideration via email to George Skibine, Principal Deputy Assistant Secretary–Indian Affairs (AR 210). In that email, petitioners requested that Assistant Secretary Skibine advise Regional Director Risling to call the requested Secretarial election ( ibid.). On October 7, 2010, Assistant Secretary Skibine informed petitioners that Regional Director Risling would reconsider the decision and issue a new decision within 45 days (AR 217).
Just over two weeks later, Regional Director Risling issued a reconsidered response, again denying petitioners' request for a Secretarial election, advising petitioners that the position of the BIA “remains the same” and that “[u]ntil the Assistant Secretary–Indian Affairs has determined that the Ukiah Valley Pomo Indians are entitled to organize under [the IRA] as a half blood community,” the BIA was “without the authority to call and conduct a Secretarial election” (AR 219–20). Regional Director Risling again provided petitioners with notice of their right to appeal to the IBIA within thirty days. Petitioners did not file a notice of appeal. It appears that Attorney Marston called...
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