Samuel George, William Jacobs, Chester Isaac, Bernadette Hill, and Inez Jimerson v. Eastern Regional Director, Bureau of Indian Affairs, 49 IBIA 164 (2009)

• Court: Interior Board of Indian Appeals

INTERIOR BOARD OF INDIAN APPEALS Samuel George, William Jacobs, Chester Isaac, Bernadette Hill, and Inez Jimerson v. Eastern Regional Director, Bureau of Indian Affairs 49 IBIA 164 (05/04/2009)

Related Board case: 42 IBIA 240

United States Department of the Interior

OFFICE OF HEARINGS AND APPEALS INTERIOR BOARD OF INDIAN APPEALS 801 NORTH QUINCY STREET SUITE 300 ARLINGTON, VA 22203

SAMUEL GEORGE, WILLIAM JACOBS, CHESTER ISAAC, BERNADETTE HILL, and INEZ JIMERSON, Appellants, v. EASTERN REGIONAL DIRECTOR, BUREAU OF INDIAN AFFAIRS, Appellee.

Order Affirming Decision ) ) ) ) ) Docket No. IBIA 06-74-A ) ) ) ) ) ) ) May 4, 2009

Samuel George, William Jacobs, Chester Isaac, Bernadette Hill, and Inez Jimerson (Appellants) are members of the Cayuga Nation (Nation) and appeal from a May 31, 2006, decision (Decision) of Eastern Regional Director Franklin Keel (Regional Director), Bureau of Indian Affairs (BIA).1 The Regional Director declined to withdraw BIA's recognition of Clint Halftown as the representative of the Nation to BIA for purposes of the relationship between the Federal government and the Nation, which for BIA was relevant to the Nation's Public Law 93-638 contract (638 contract).2 The Regional Director continued this recognition based on a unanimous 2003 designation of Halftown1

Given other circumstances, the BIA would be averse to intervening into a situation whereby tribal leadership was unable, for whatever reason, to reach a decision and the BIA would be called upon to interpret tribal law. In this instance, not only is there a lack of tribal law to interpret, but the circumstances would require the BIA to make two decisions: if the January 3 resolution was an official action of the Council and, if so, what ramifications the reversals of two members of the Council have on that action. Given the complexity of this situation, BIA is not inclined to render a decision which calls for the application of established guidelines where none are in evidence to apply. The BIA does not consider it appropriate to attempt to discern tribal law in this matter. Therefore, the BIA shall remain silent on the validity of the January 3, 2006 resolution and the subsequent disavowal of the resolution by Messrs. Twoguns and Wheeler. Inasmuch as the BIA has received no clear indication of tribal law in this matter, it has no basis upon which it could withdraw recognition of Mr. Halftown as the Nation's representative in its government-to-government relations with the BIA. Id. at 6-7. Refusing to decide that the January 2006 Resolution was either a valid action of the Council or a consensus decision, the Regional Director concluded that he had received insufficient evidence in support of Appellants' faction's claim that BIA must revoke its recognition of Halftown. Such recognition is "limited to the government-to-government role" defined in the August 2003 Designation Letter. But his "powers as the Nation's designated representative are defined and controlled by the Nation, not by BIA." Id. at 8. With respect to the second question, the Regional Director explained BIA's various efforts to investigate the accusations put forth by the Tribal leaders: The BIA has been aware for some time of these allegations and is aware that the proper authorities have been notified of the allegations with regard to federal program funds. BIA Eastern Regional Office staff conducted an onsite P.L. 93-638 contract review of the Nation's Aid to Tribal Government contract on March 14-16, 2006. The BIA staff conducted a careful review of the Nation's programmatic expenditures for the 2005 program year, and have identified material weaknesses in the Nation's financial accounting system. The BIA has also received a recent financial audit of the nation's finances conducted by an independent accounting firm and is aware of the findings of that audit. The Nation staff, to its credit, has been very cooperative in these reviews and has taken the initiative in providing corrective action plans to address the problems identified by the program review and the financial audit. 49 IBIA 181

There has been no evidence unearthed in the program review or the audit or in Mr. Heath's letters which would support consideration of discontinuing our recognition of Mr. Halftown on the basis of upholding our trust responsibility to the Nation. With respect to Mr. Heath's argument that the BIA has a trust responsibility to withdraw recognition of Mr. Halftown because he is mismanaging Nation monies, it is noted that the Nation funds in question are not trust funds and therefore, there is no trust responsibility involved. Please be informed that allegations of theft of Nation funds or property may be brought to the attention of the Federal Bureau of Investigation (FBI) . . . as the FBI has jurisdiction to investigate these charges under the federal criminal code. Id. at 8. He concluded the Decision by urging mediation of the Nation's disputes. Appeal and Arguments of the Appellants This appeal followed, brought by Appellants Jacobs, George, Isaac, and Clan Mothers Hill and Jimerson. The case is briefed and argued in the following pleadings: · · · · · · · · · · · · June 22, 2006, Appellants' Notice of Appeal and Statement of Reasons; July 21, 2006, Answer of "Interested Parties" (Halftown, Twoguns, and Wheeler); Sept. 11, 2006, Appellants' Opening Brief; Oct. 10, 2006, Brief of Interested Parties; Oct. 13, 2006, Answer of the Appellee; Oct. 25, 2006, Appellants' Reply Brief; Jan. 5, 2007, Letter from Appellants attaching Dec. 19, 2006, decision of U.S. EPA Regional Administrator (EPA Decision); Jan. 10, 2007, Letter from Interested Parties Opposing Submittal of EPA Decision; Jan. 25, 2007, Appellee's Response to Submittal of EPA Decision; Jan. 25, 2007, Letter from Interested Parties responding to EPA Decision; Mar. 9, 2007, Letter from Appellants attaching Feb. 20, 2007, Letter from Cayuga Nation to Appellants; and Mar. 19, 2007, Letter from Interested Parties in response to Appellants' Letter forwarding Feb. 20, 2007, letter to Appellants.

We attempt briefly to summarize the parties' arguments in these pleadings.

Appellants do not challenge the six-member Council identified by the Regional Director, but contend that he defined "consensus" in the March 15, 2005, letter sent to their attorney to mean that consensus "can be reached [with] some opposition." Appellants' Opening Brief at 2. On these premises, Appellants argue that the issue before this Board is quite simple; because "five of the six members of the Nation's Council agreed to remove Mr. Halftown as the Nation's representative, and signed a formal Resolution to that effect," they assert that the Regional Director has already found that such a five-to-one majority of the Nation's governing body is sufficient to constitute "consensus." Thus, their first argument is that the Regional Director erred in refusing to honor the January 2006 Resolution, which they claim to be a consensus decision of the Council. Id. at 2. Appellants argue that "consensus" as unanimity is "contrary to Cayuga practice as recognized by BIA" and contrary to "BIA's longstanding recognition" of the Nation's "consensus-based system" in the March 15, 2005, letter from the Regional Director to Heath. Id. at 15-16. They cite the May 31, 2006, decision on appeal as "newfound confusion" over consensus, id. at 18, and assert that defining consensus as "unanimous" would give Halftown a permanent veto over his own removal. Id. Moreover, they claim that Twoguns and Wheeler could not undo the January 2006 Resolution with the April 11, 2006, revocation of their prior signatures on it, because a consensus decision can only be vacated by another consensus decision. Id. at 3. Appellants contend that the Council's January 2006 Resolution "remains in full force and effect, and . . . is entitled to be honored and respected by BIA." Id. at 22. They argue that the Regional Director's failure to repudiate Twoguns' and Wheeler's April 11 "post-hoc reversals" "permanently hobble[s]" the Nation. Id. at 20. Second, Appellants argue that the Regional Director breached BIA's trust responsibility to the Nation because, in their view, they presented "clear evidence that Mr. Halftown has abused his position for personal and political gain," refused them access to the Nation's records, and maintained unilateral control of the Nation's bank accounts and financial decisions. Id. at 4-5. Repeating the six examples of Halftown's misuse of Nation funds cited in their April 2006 letters, Appellants argue that BIA's trust responsibility requires BIA to withdraw recognition of Halftown as the Nation's representative, when faced with the magnitude of evidence, in their view, of his malfeasance. Id. at 23-25. Finally, Appellants concede that the August 2003 Designation Letter exists, was signed by the Nation's Council, and designated Halftown as "Representative of the Cayuga Nation," Opening Brief at 9, but question its continued validity based on assertions about the Council's operations. They contend that, under the Nation's system of governance, "there is no role of `Nation Representative'." Id. They state that the "sole authority for the temporary role of `Nation representative' came from the late condoled Chief [Isaac] who, 49 IBIA 183

due to his illness, needed the assistance of the younger seatwarmer to convey messages and information." Id. They state that "Chief Isaac designated Mr. Halftown to act as his `eyes and ears'." Id. They conclude that the role designated for Halftown has never carried with it the authority to make unilateral decisions. Id. They contend that George and Jacobs "are fully condoled Chiefs by virtue of having been raised to their positions in a Six Nations' condolence ceremony in April 2005." Id. at 8 n.5. As we understand their point, they contend that, upon the condolence of Jacobs and George as chiefs, Halftown's temporary position as...