Timbisha Shoshone Tribe v. Kennedy, Case No. CV F 09-1248 LJO SMS.

Citation687 F. Supp.2d 1171
Decision Date03 November 2009
Docket NumberCase No. CV F 09-1248 LJO SMS.
PartiesTIMBISHA SHOSHONE TRIBE, Edward Beaman, Virginia Beck, and Cleaveland Lyle Casey, Plaintiffs, v. Joseph KENNEDY, Madeline Esteves, Pauline Esteves, Angela Boland, and Erick Mason, Defendants.
CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California

Francis John Nyhan, Monteau and Peebles, John M. Peebles, Albert Robert Rhoan, Jr., Fredericks Peebles & Morgan LLP, Sacramento, CA, for Plaintiffs.

George Forman, Jeffrey Ryan Keohane, Forman & Associates, San Rafael, CA, for Defendants.

ORDER ON PLAINTIFFS' PRELIMINARY INJUNCTION MOTION

LAWRENCE J. O'NEILL, District Judge.

INTRODUCTION

Plaintiffs Timbisha Shoshone Tribe ("Tribe"),1 Edward Beaman ("Mr. Beaman"), Virginia Beck ("Ms. Beck"), and Cleaveland Lyle Casey ("Mr. Casey") ("collectively Plaintiffs") move for a preliminary injunction, pursuant to Fed. R.Civ.P. 65, against defendants Joseph Kennedy ("Mr. Kennedy"), Madeline Esteves ("Ms. Esteves"), Pauline Esteves, Angela Boland ("Ms. Bond"), and Erick Mason ("Mr. Mason") (collectively "Defendants"). For the following reasons, this Court DENIES Plaintiffs' motion for preliminary injunction.

BACKGROUND

From 2006 through the present, Plaintiffs, Defendants, and others not party to this action have contested the governance of the Tribe fiercely. Governance of the Tribe has split, and two factions have emerged—one faction based out of Bishop, California ("Bishop faction") and one faction based out of Death Valley, California ("Death Valley faction"). Plaintiffs are associated with the Bishop faction, Defendants are associated with the Death Valley faction. In an attempt to gain leadership and control over the tribe, funded by dueling Casino prospecting businesses, and separated by geography, the Bishop and Death Valley factions have held separate elections and run parallel and competing tribal governments since 2006. All disputed elections have been appealed to the United States Department of the Interior, Bureau of Indian Affairs ("BIA"). Currently, those appeals are consolidated and remain unresolved. Each faction claiming to be authorized representatives of the Tribe, bank accounts are opened in the Tribe's name only to be closed or frozen once the bank becomes aware of the governance dispute. Adding to the confusion, the Death Valley faction, after re-examining enrollment records, disenrolled over 70 people from the Tribe, including Plaintiffs and a large number of the Bishop faction. These actions have caused harm to the parties, the Tribe, non-party Tribe members, former Tribe members, government agencies and their agents, and businesses in the area surrounding tribal lands. Below, the Court presents a brief synopsis of this dispute.

Conflicting Tribal Elections and BIA Decisions

The last undisputed Tribal Council election occurred in November 2006. The results of that election resulted in the following "2006 Council": defendant Mr. Kennedy was elected as Chairperson, plaintiff Mr. Beaman elected as Vice-Chairperson, defendant Ms. Casey elected as Secretary/Treasurer, and plaintiffs Mr. Casey and Ms. Beck elected as Executive Council members. Under the laws of the Tribe, the Tribal Council constitutes the government leadership of the Tribe.

Factions Split

The current dispute2 began at an August 25, 2007 Tribal Council meeting. Prior to the meeting, two members of the Tribe's General Council, including Wallace Eddy, Sr. ("Mr. Eddy"), lodged charges against Ms. Beck and Mr. Beaman, and called for their removal from the Tribal Council. At the August 2007 meeting, Mr. Eddy presented the charges, but offered no evidence in support of the allegations. A disagreement ensued over whether Ms. Beck and Mr. Beaman would be allowed to vote on the removal charges. The disagreement ended when Ms. Beck and Mr. Beaman walked out of the meeting. Mr. Casey also left the meeting. Mr. Kennedy declared that leaving the meeting constituted guilt of the charges made, pursuant to Tribal custom. A member of the General Council moved to remove Ms. Beck and Mr. Beaman from the Tribal Council. No vote was taken on this motion. Mr. Kennedy "replaced" Ms. Beck with another member with Margaret Armitage ("Ms. Armitage") to continue the meeting, without following the procedures as outlined in the Tribe's Constitution. As a result of the charges and break-down at the meeting, the two competing factions formed—the Bishop faction led by Ms. Beck and Mr. Beaman, and the Death Valley faction led by Mr. Kennedy.

Bishop faction Special Tribal Council Meeting

Mr. Beaman, Ms. Beck, and Mr. Casey, as the "governing majority" of the 2006 Council, called a special Tribal Council meeting on September 22, 2007. At that meeting, the three voted to: (1) declare the removal of Ms. Beck and Mr. Beaman void; (2) affirm that the Tribal Council consisted of the 2006 Council members; (3) declare any efforts by Mr. Kennedy and Ms. Esteves to hold an election for Ms. Beck's and Mr. Beaman's offices null and void; and (4) amend a Tribal election ordinance and appoint an election board in anticipation of the 2007 Tribal Council elections. Tribal Council elections are held each November.

Competing 2007 Elections

Mr. Kennedy called a meeting of the General Council on November 13, 2007 to conduct an election for four positions of the Tribal Council, to replace Mr. Beaman, Ms. Beck, Mr. Casey, and Ms. Esteves. As a result of that election, the following "2007 Death Valley Tribal Council" was named: Mr. Kennedy as Chairperson; Margaret Armitage as Vice-Chairperson; Madeline Esteves as Secretary-Treasurer; Margaret Cortez and Pauline Esteves as Executive Council members. Plaintiffs contend that election was in violation of the Tribal Constitution.

On the same day, Mr. Beaman, Ms. Beck, and Mr. Casey held a separate Tribal Council election. That election resulted in following "2007 Bishop Tribal Council": Doug Gholson ("Mr. Gholson") as Chairperson; Mr. Beaman as Vice-Chairperson, Ms. Casey as Secretary/Treasurer Mr. Casey and Ms. Beck as Executive Council members. At this election, the election board appointed at the Bishop faction special meeting declared the results of the 2007 Death Valley Council election to be null and void. Defendants dispute the results of this election.

Appeal of 2007 Elections

Both the 2007 Death Valley Council and the 2007 Bishop Council sought recognition of their elections from the BIA. On December 14, 2007, Troy Burdick ("Sup. Burdick"), the Superintendent of the Central California Agency of the BIA concluded that both of the November 2007 elections were invalid, as they were conducted in violation of tribal law. RJN, Ex. 1. In addition, Sup. Burdick concluded that Mr. Kennedy's removal of Ms. Beck and Mr. Beaman at the August 2007 was inconsistent with tribal law. Id. Accordingly, Sup. Burdick continued to recognize the 2006 Council for government-to-government purposes. Id. Mr. Kennedy appealed that decision.

Death Valley January 2008 Special Meeting and Subsequent BIA Action

Mr. Kennedy organized and conducted a special General Council meeting on January 20, 2008. At that meeting, the body voted to ratify: (1) the results of the 2007 Death Valley Tribal Council election; (2) the results of the removals of Ms. Beck and Mr. Beaman at the August 2007 meeting; and (3) a legal interpretation that pursuant to tribal custom, Ms. Beck and Mr. Beaman's departure from the August 2007 meeting constituted admissions of the charges and resignations from the Tribal Council.

With the appeal of the December 14, 2007 decision pending, Sup. Burdick rescinded his December 14, 2007 decision and recognized the results of the Death Valley January 20, 2008 special meeting. Plaintiffs appealed that decision.

Removal of Kennedy, Special Election, and BIA Action

While the BIA appeals were pending, a petition signed by ten tribal members authorized a September 20, 2008 General Council meeting. The September 20, 2008 meeting was held in Las Vegas. Allegedly, Tribe members, their family and friends were treated to an all-expense paid vacation to Las Vegas for the meeting and were paid for each vote sponsored by a casino developer. It is further alleged that although General Council membership is restricted to Tribe members who are 16 years of age and older, children younger than 2 years old were paid for their vote in this election.

At that meeting, the General Council voted to remove Mr. Kennedy from his position as Chairperson. Also at that meeting, the General Council accepted the resignation of Margaret Armitage from the Tribal Council and voted to elect the following as the "2008 Gholson Tribal Council": Mr. Gholson as Chairperson; Mr. Eddy as Vice-Chairperson; Ms. Esteves as Secretary-Treasurer, and Margaret Cortez and Pauline Esteves as Executive Council members. A month later, on October 17, 2008, Sup. Burdick issued a letter recognizing the 2008 Gholson Tribal Council for government-to-government purposes. RJN, Ex. 5.

Further BIA Decisions and District Court Actions

In the space of a month, Sup. Burdick issued three BIA decisions, each recognizing a different Tribal Council. Sup. Burdick's October 20, 2008 letter confirmed his prior decision to recognize the 2008 Gholson Tribal Council. RJN, Ex. 6. The next day, on October 21, 2008, Sup. Burdick issued a letter to clarify that prior decisions were not final or effective because of the pending appeals and, therefore, Sup. Burdick recognized the 2007 Death Valley Tribal Council for government-to-government purposes. One month later, on November 21, 2008, Sup. Burdick issued a letter that re-clarified that since all pending appeals were not yet final, he recognized the 2006 Council as the tribal council for government-to-government purposes. Mr. Kennedy appealed each of those letters.

Less than two weeks later, in a December 4, 2008 letter, the BIA again reversed course to recognize the 2008 Gholson Tribal Council,...

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